From jeebesh at sarai.net Tue Feb 1 18:06:43 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Tue, 01 Feb 2005 18:06:43 +0530 Subject: [Commons-Law] US Path to Wealth and Power: Intellectual Piracy and the Making of Industrial America Message-ID: <41FF77DB.8040407@sarai.net> US Path to Wealth and Power: Intellectual Piracy and the Making of Industrial America Doron Ben-Atar, Fordham University Contested Commons/Tresspassing Public A Conference on Inequalities, Conflicts, and Intellectual Property January 6-8, 2005 Indian Habitat Center, New Delhi [Sarai-CSDS, New Delhi and Alternative Law Forum (ALF), Bangalore] China has been the economic miracle of our time. Less than two decades ago, the country defined poverty and underdevelopment; today, China is one of the premier engines of world economic growth, thanks in large part to the political repression that keeps the cost of labor there at a pittance. Mao’s successors have also realized, however, that in order to join the ranks of developed nations China must close the technology gap—and that the surest and quickest way to do so is to pilfer Western know-how. And the Chinese have been quite active. My favorite episode centers on a Chinese American woman named Gao Zhan. In February 2001 Gao, who received her Ph.D. in Sociology from Syracuse University in 1997 and was a researcher at American University in Washington DC, was conducting research in China when she was arrested, tried and convicted for spying for Taiwan. Sentenced to ten years imprisonment, Gao Zhan’s detention triggered a wave of protests from human rights organizations all over the globe, and in the US both houses passed resolutions granting her immediate citizenship. She was let go in July 2001, in apparent good will gesture to the upcoming visit by Secretary of State Colin Powel. But this would not end up as just another heart warming story of the triumph of international outcry over tyranny. Two years later, in November 2003, Gao Zhan was back in court – this time in the United States where she pleaded guilty to being an industrial spy for the Chinese. Using the assumed name Gail Heights and a front company that she claimed was affiliated with George Mason University, Gao delivered to her Chinese operators $1.5 million worth of high-tech components from American companies, including microprocessors with possible military uses, before she was caught. The depth and extent of the Chinese piracy effort, which has gone after everything from computer software to music, has alarmed members of Congress in both political parties. Republican Senator Richard Shelby of Alabama, the chairman of the Senate Select Committee on Intelligence, warned that China’s next great leap forward will be made possible through illegal appropriation and use of American patented and copyrighted materials. During recent Congressional hearings on the piracy of intellectual property and their links to organized crime and terrorism, Democratic Congressman Howard Berman of California estimated that China’s transgressions cost the US economy $1.85 billion dollars a year. With this kind of money at stake, the battle over intellectual property has risen to the forefront of contests between developed and developing nations. Developed nations are concerned about piracy by consumers and producers. On the consumer front, companies and individuals in developed nations complain that their creations, whether designer accessories or drug patents, are being copied and sold without authorization or compensation. Piracy by producers in the developing world causes even greater anxiety in the West. The movement of manufacturing to the developing world where raw materials are readily available and labor costs are low has rendered intellectual capital the most important asset of modern corporations. (The American companies whose technology was acquired by Gao Zhan stand to lose millions if their technologies can be reproduced by Chinese manufacturers with no intent of compensating them.) China is hardly the only developing nation that engages in intellectual piracy. And Western-based companies are asking international agencies to police the developing world. Indeed, international organizations have adopted western standards and have created an agency, the World Intellectual Property Organization, which is “dedicated to helping to ensure that the rights of creators and owners of intellectual property are protected worldwide and that inventors and authors are, thus, recognized and rewarded for their ingenuity.” Some companies are trying to safeguard their intellectual property. At a leadership summit for chief executives last fall, the CEOs of Medtronic, a medical technology company, and Sealed Air, which specializes in packaging, said that their companies decline to use top-of-the line technologies in their overseas operations because they fear their intellectual property will be stolen. *** Before Americans rush to condemn those who pirate our know-how they must not forget how the United States became the richest and most powerful nation on earth. At the end of the third quarter of the 18th century the British colonies of North America were mostly under-developed agricultural settlements. The foundations for the American empire were laid during the next seventy five years, as the United States was transformed from an under-developed de-centralized entity on the periphery of the Atlantic economy into the dominant center of industry, wealth, and power. Piracy of the intellectual property of others played a crucial role in this process. The transfer of protected European technology was a prominent feature in the economic, political and diplomatic life of the North American confederation from its first moments as an independent political entity. With the signing of the 1783 peace accord that officially ended the American Revolution, the United States and Great Britain became political and economic adversaries. The founders believed that American political independence depended on economic self-sufficiency, which meant that the young nation needed to reduce its vast consumption of imported English manufactured goods. The new defiant American mood, heightened by wartime demands for military and industrial goods and the post-war desire to prove the compatibility of republican government and a high standard of living, viewed technology piracy as the premier tool to industrial development. Perhaps the best way to illustrate the situation is by the following vignette. In the second week of November 1787, Phineas Bond, British consul in Philadelphia, received a visit from two English nationals. Thomas Edemsor, a cotton merchant from Manchester, and Henry Royle, a calico printer from Chadkirk in Cheshire County, were greatly distressed. They feared lynching at the hands of a mob led by the city's leading merchants and they looked to the envoy of His Britannic Majesty's government for shelter. Their story went as follows: In 1783, concurrent with British recognition of American independence, an Englishman named Benjamin H. Phillips set out to establish a cotton manufactory in America. In spite of severe restrictions on the exportation of textile machinery and the emigration of skilled artisans, Phillips purchased a carding machine and three spinning machines in England, packed them disassembled into crates declared to British customs to contain Wedgwood china, and boarded the U.S. ship Liberty at Liverpool bound for Philadelphia. He had earlier sent his son to the U.S. capital in anticipation of the machinery's arrival. The elder Phillips died before reaching America and his son received the crates, but lacking his father's knowledge of the machinery he could not reassemble the equipment. He then sold it to another Englishmen, Joseph Hague, who managed to assemble it but could not make it work properly. Having no capital and despairing of the operating expenses, in the spring of 1787, Hague sold the equipment to Royle, who in turn sold it to Edemsor. Edemsor once again disassembled the four machines and shipped them back to England. According to his testimony, he patriotically purchased and repatriated the equipment “to Check the Advancement of the Cotton Manufactory in America.” In the meantime, a group of Philadelphia merchants, concerned with advancing the cause of U.S. economic independence form Britain to complement the nation's newly found political independence, formed “The Pennsylvania Society for the Encouragement of Manufactures and the Useful Arts.” The group had instigated a search for Hague's machinery and became infuriated upon learning of its repatriation by Royle and Edemsor. The merchants' wrath turned on the British culprits, who “in great dread of suffering from their Resentment,” went into hiding for several weeks. Finally, the fugitives approached Bond for protection, and, in Royle's case, for money to secure passage back to England. Shocked by the fanatic zeal of “the American Seduction of British Machines and Artisans” and convinced of the real danger of violence his compatriots faced from the leading men of Philadelphia in their quest to acquire “the industrial secrets of the Old World,” Bond paid the fare for Royle and his family out of his own pocket. When the Society learned of Royle's and Edemsor's escape, its leaders publicly rebuked and insulted the British consul. Not intimidated, Bond set about investigating the incident. His inquiries led him to focus on the slippery character of Hague, who had left the city and was rumored to be back in England attempting to procure more equipment for illegal exportation to America. He notified the British foreign office that Hague might be found for arrest in Derbyshire, but by the time the authorities arrived there Hague was gone. He reappeared in Philadelphia the following spring, having successfully smuggled over a new cotton-carding machine. Adding insult to injury, the Pennsylvania legislature awarded him a prize of $100.00 on October 3, 1788 for having succeeded in his piracy. The Manufacturing Society trumpeted the achievement in the press and showed little concern for the subject of intellectual property, “It is with great pleasure we learn” it announced, “that the ingenious Artizan, who counterfeited the Carding and Spinning Machine, though not the original inventor (being only the introducer) is likely to receive a premium from the Manufacturing Society, besides a generous prize for his machines; and that it is highly probable our patriotic legislature will not let his merit pass unrewarded by them. Such liberality must have the happy effect of bringing into Pennsylvania other useful Artizans, Machines, and Manufacturing Secrets which will abundantly repay the little advance of the present moment.” The Bond affair is one among many that I chronicle in my book. Those in the U.S who whine about the current state of affairs conveniently forget that two hundred years ago the shoe was on our foot. American prosperity originated in the piracy of industrial technologies from Europe, primarily England, to the United States in the first half of the nineteenth century. The process took place in spite of a concerted effort by the English government to keep their trade secrets at home. Prohibitions on the emigration of artisans and the exportation of machinery from the British Empire had been in effect throughout the eighteenth century. In the mid 1770s, as the imperial conflict took shape, Parliament ruled that all people leaving for the North American colonies from the British Isles and Ireland with intent to settle there were required to pay £50 per head. After the United States won its independence, growing anxiety in Britain over industrial piracy prompted stronger legislation and stricter enforcement. Exporting industrial equipment from textile, leather, paper, metals, glass and clock making was prohibited in the 1780s. The restrictions were particularly comprehensive in all that was connected with the textile industry, covering existing as well as future developments. Robert Owen, recalling his early days in England's textile industry, reported that in the 1780s the “cotton mills were closed against all strangers, and no one was admitted. They were kept with great jealousy against all intruders: the outer doors being always locked.” A £200 fine, forfeiture of equipment, and twelve months' imprisonment (or a £500 fine and forfeiture in the case of textile machinery) were laid down for the export or attempted export of industrial machinery. The export of steam engines was prohibited temporarily in 1785. The founders knew of these restrictions, but they believed that for the US to survive politically and economically it must close the technology gap. And fast. Framers of the US Constitution unanimously approved Article I, section 8 which instructed the new government “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writing and discoveries.” The Founding Fathers decided to provide a mechanism by which individual inventors and authors were rewarded for enriching American society with new devices or writings. Inventors and writers were the only occupational groups given special benefits in the United States Constitution. It is the only section of the US Constitution that specifies not only the responsibility of the future form of government, but also the strategy it should use to attain that goal. A bill to establish a patent system was introduced at that first historical session of the United States Congress, but did not reach the floor. The initial proposal followed the English system enacted to attract superior European craftsmen to the kingdom. Men who introduced technological innovations hitherto unknown in England were rewarded with production monopolies. Likewise, in the proposed American bill introducers received patents of importation and enjoyed all the privileges of original inventors. The President, eager to expedite matters, addressed the issue in his first annual message in January 1790. Washington requested the enactment of legislation encouraging “skill and genius” at home and “the introduction of new and useful invention from abroad.” The dominant political figure of the Washington administration, Treasury Secretary Alexander Hamilton, shared these sentiments. Hamilton deplored American dependency on European imports. Only the development of an indigenous industrial economy could liberate the nation’s economy from the British hold. He ascribed the difficulties of American manufacturing to technological deficiencies and wrote that the gap between Europe and the United States would diminish “in proportion to the use which can be made of machinery.” He called on the Federal government to establish some “auxiliary agency” to coordinate the piracy of European technology. He proposed to market America’s industrialization in Europe so that skilled workers might be induced to circumvent national restrictions on artisans’ immigration. He proposed encouraging industrial immigration by offering travel subsidies for artisans and exempting from customs for their tools, implements of trade, and household goods. The “public purse must supply the deficiency of private resources,” he declared, for “as soon as foreign artists be made sensible that the state of things here affords a moral certainty of employment and encouragement – competent numbers of European workmen will transplant themselves, effectively to ensure the success of the design.” The industrialization of the United States, Hamilton concluded, would “in a great measure trade upon a foreign stock.” Congress set out to write an American patent bill that will conform to the sentiments of Washington and Hamilton. The House of Representatives produced a version granting introducers of pirated technology the monopoly privileges accorded to original inventors. The Senate however, amended the bill to grant patent monopolies only to inventors of machines “not before known or used” and deleted the location qualifier of the house version--“within the United States.” The elimination of these four words was revolutionary. The first United States Patent Act broke with the European tradition of patents of importation. It restricted patents exclusively to original inventors and established the principle that prior use anywhere in the world was grounds for invalidating a patent. This criterion is particularly puzzling because the young nation needed to import technology to develop its industrial base. Moreover, the two most important members of the Washington administration, the President and Alexander Hamilton, supported granting patents of importation. The sheer volume of applications made the first patent act an administrative nightmare. In 1793 Congress relieved members of the cabinet from wasting their time examining individual patents and assigned the duty to a clerk in the State department. A patent became a registration of a claim anyone could make provided he paid the $30.00 fee, and that no similar claim was previously registered. Acquiring a patent depended exclusively on prompt completion of the necessary bureaucratic paperwork. The revised system maintained the dual demand for novelty and originality by requiring each patentee to take an oath that he/she was indeed the first and original inventor. The disputes likely to arise from this strictly bureaucratic registration were to be resolved by a board of arbitrators and the courts. A revision in 1800 added the requirement of an oath by all applicants to the effect that their “invention, art or discovery hath not … been known or used either in this or any foreign country.” Textual examination of the law might give the impression that the young republic rejected technology piracy and established a new intellectual property moral code. Before Americans break into their all too familiar self-congratulatory verse about the virtuous foreign policy of the republic, it is worthwhile to examine the actually operation of the American patent law. First, we should remember that every founding father understood the inferiority of American technology, and believed that the key for American independence is in asserting economic independence from GB, and that the only way of doing this is by weaning the American consumers of products manufactured in England. And every founding father supported the piracy of European technology by whatever means necessary and most even actively engaged in that practice. Further, in theory the United States pioneered a new standard of intellectual property that set the highest possible requirements for patent protection—worldwide originality and novelty. But the intellectual property laws Congress enacted in the first fifty years of national existence were but a smokescreen for a very different reality. The statutory requirement of worldwide originality and novelty did not hinder widespread and officially sanctioned technology piracy. William Thornton, who administered the United States patents for much of the life of the 1793 Act, did not insist on the oath of international novelty. It is indeed entirely possible that most of the applications received at the patent office were for devices already in use. In fact, since acquiring a patent involved little more that successful completion of paperwork, the Patent Act of 1793 permitted patentees to receive patents that infringed on the intellectual property of others. Moreover, the Act explicitly prohibited foreigners from obtaining patents in America for inventions they have already patented in Europe. This meant that while United States citizens could not petition for introducers’ patents, European inventors could not protect their intellectual property in America. The American patent system, then, sanctioned technology piracy as long as imported technology was not restricted exclusively to any particular individual introducer. Intellectual property in the early republic favored operators, internal developers, and entrepreneurs at the expense of investors and inventors. A new understanding developed about the proper arena for technology piracy. A self-respecting government eager to join the international community on an equal basis could not flaunt its violation of the laws of other countries. Patterns established under the semi-anarchic revolutionary and Confederation circumstances were inappropriate behavior for a respected member of the international community. This was all the more important in the case of nascent Washington administration, whose chief task was establishing legitimacy at home and abroad. To be sure, clandestine appropriation of English technology not only persisted but also intensified. Every major European state engaged in technology piracy and industrial espionage in the eighteenth century, and the United States could not afford to behave differently. Yet, there was etiquette to this piracy. It was undertaken in secret and officials would deny any connection to such practices. The British efforts to keep innovation from leaking across the Atlantic proved futile. Inventors and entrepreneurs easily found ways to circumvent laws that aimed to keep know-how and production at home. Tens of thousands of artisans crossed the Atlantic and brought with them their skills, methods and tools. Moreover, piracy became the de facto defining feature of American economic policy in the decades following independence. The United States emerged as the leading industrial nation in the world and Britain revoked its restrictions. The young republic embraced a Janus-faced approach. In theory it pioneered a new standard of intellectual property that set the highest possible requirements —worldwide originality and novelty. In practice, the country encouraged widespread intellectual piracy and industrial espionage. Piracy took place with the full knowledge and sometimes even aggressive encouragement of government officials. Congress never protected the intellectual property of European authors and inventors, and Americans did not pay for the reprinting of literary works and unlicensed use of patented inventions. Lax enforcement of the intellectual property laws was the primary engine of the American economic miracle. The early republic made no effort to enforce its groundbreaking patent laws. The first decades of national existence saw the most intense pursuit of English technology on the Federal and state level. These efforts were particularly successful in the textile industry as small-scale capacity to build and operate the newest mule spinning and Arkwright technologies sprang in a variety of spots in the northeastern urban centers. Indeed, piracy was crucial to the development of the republic. Its book stores and libraries were largely composed of unauthorized reprinting of British authors—a phenomenon similar to the rampant piracy of music by consumers in today’s developing world. On the producer front, the violations were even more blatant. A British attorney reported in 1818 that “European discoveries in art and science generally reach the United States within a few months after they first see the light in their own country, and soon become amalgamated with those made by Americans themselves.” In 1814, a French traveler noted that nearly all the machinery used in American manufacturing had “been borrowed from England.” When the patent law was reformed again in 1836, it was no longer necessary for the nation to pretend it would protect the intellectual property of non-Americans. Indeed the 1836 act removed the prohibition on patents of importation. And whereas the 1836 act no longer restricted patents only to U.S citizens, it did set the registration fee for foreigners at 10 times the rate for Americans (and two thirds as much again if one were a British citizen.) In 1861 the act was reformed to give foreigners an almost equal footing. US copyright protection was restricted to US citizens even longer and when those were removed other regulations such as requiring the use of American typesets, delayed the American entrance to the Berne copyright convention till 1989 – more than 100 years after GB joined. To a very large extent, the industrialization of the United States in first half of the nineteenth century was founded upon pirated know-how. In textile, some followed Robert Lowell’s path and managed to talk their way into factories, while others circumvented the restrictions on the export of machinery by shipping machine parts to the United States as separate components. As late as 1850 immigrants from the British Isles comprised more than three-fourth of the weavers and skilled workers of the textile industry of Germantown, Pennsylvania. Managers of American cotton mills in the first half of the nineteenth century were, for the most part, English immigrants because native experienced managers were rare. American glass manufacturers recruited European workers aggressively in the first two decades of the nineteenth century and by the 1820s were world leaders. Paper mills in New England and the Mid-Atlantic states relied on a constant stream of skilled European immigrants before local industry took off in the 1830s and 40s. Later in the 19th century, American steel industry was founded upon imported technology. In all these cases European know-how was instrumental in getting industries started and turning the United States into a leading industrial nation. As these examples illustrate, the statutory requirement of worldwide originality and novelty for American patents did not hinder widespread American appropriation of innovations protected under other nations’ patent and intellectual property laws. In fact, once a technology was in the New World, its introducers could quickly claim it their own, and use the courts to discourage infringements. The Boston Manufacturing Company, a.k.a Boston Associates, registered nine patents and obtained the rights to two others. It hired the country’s most famous lawyer, Daniel Webster, and sued competitors for patent infringement. Claiming ownership of a pirated innovation was quite easy. Obtaining a patent under the 1793 act involved little more than filing the necessary papers and paying the $30.00 registration fee. The poorly staffed patent office was in no position to examine the merit of the nearly ten thousand patents it issued from 1793 to 1836. As one critic charged, most American patents registered with the patent office were at best only slightly different from known and operating existing machines. The mechanics of patent registration not only betrayed the spirit of the original legislation by granting patents to innovations of questionable originality, but also, in effect, allowed wealthy importers of European technology, such as the Boston Associates, to claim exclusive rights to imported innovations and use the courts to validate their claims and intimidate competitors. A dual intellectual property regime fueled the 19th century American economic miracle. In theory, the nation was committed to protecting the intellectual property of authors and inventors, but authorities did little to enforce laws. By granting unenforceable monopolies to patentees, the U.S. acquired a reputation of being friendly to innovation while at the same time, by declining to crack down on technology pirates, it allowed for rapid dissemination of innovation that made American products better and cheaper. From the American Revolution to Crystal Palace exhibition of 1851, the United States technology caught up and surpassed its European rivals. The industrialization that took place along the northeastern seaboard in the first half of the nineteenth century facilitated a dramatic two third growth in per capita income. The United States economy grew faster and was more productive than any other nation in Europe. Contemporaries and historians have come up with a wide range of social, political and cultural explanations for this dramatic development. Some celebrate it as the ultimate manifestation of the virtue of the American spirit of enterprise and others argue that the blood and sweat of slaves provided the capital for the spectacular economic growth of the first half of the nineteenth century. What is often overlooked is the manner in which smuggled technology made for more efficient and more profitable industrialization. Tens of thousands of artisans crossed the Atlantic and brought with them their skills, methods and tools. American industrialists, scientists and intellectuals kept abreast of mechanical developments through trips to Europe and growing scientific exchange. Federal and states authorities were officially committed to respecting the intellectual property of others, yet in fact sanctioned smuggling of protected knowledge a huge scale. American investors and mechanics modified imported technology to local circumstances. The infant state of American know-how and the absence of established classes committed to earning their livelihoods from known and tried techniques freed innovators from whole sale adoption of imported technologies in favor of innovations Europeans often deemed too costly or impractical. Technology transfer, then, accounts not only for the rapid economic growth of the republic in the first half of the nineteenth century, but also for the experimental and innovative reputation of the “American system of manufactures.” Crystal Palace turned out to be the “coming out party” for United States technology. In the span of seventy years an agricultural republic with some household manufactures that had more in common with the Middle Ages than with the industrial world, transformed itself into a world leader of cutting edge industrial technology. American machines and the “American system of manufacturing,” as the British press called it, became the model for worldwide imitation. Similarly to modern developing nations, early in its history the United States violated intellectual property laws of rivals in order to catch up technologically. Integration into the international community required that the government of the United States distance itself from such rogue operations. In the process the United States had come full circle. The fledgling republic, once committed to technology piracy had become the primary technology exporter in the world. The years of piracy upon which the new status was founded, however, were erased from the national memory. The intellectual debt to imported and pirated technology did not turn the United States into the champion of free exchange of mechanical know-how. As the diffusion of technology began to flow eastward across the Atlantic, the United States emerged as the world’s foremost advocate of extending intellectual property to the international sphere. *** The developing world is taking a similar route. Formally, all members of the World Trade Organization promise to respect international intellectual property rights, but in practice developing nations do little to enforce those laws. Some companies plead with international agencies such as the WTO and the World Intellectual Property Organization to police the matter but with little success. Yet even if western political leaders were not reluctant to enter into international disputes over the protection of intellectual property, the American story should remind contemporary advocates of technology protectionism that that all these efforts are destined to fail. If past patterns are going to be repeated, within a short time, local entrepreneurs in the developing world will acquire, by whatever means, America’s trade secrets and produce the desired goods and services on their own. Politicians anxious to stop the bleeding of American jobs or to protect the royalties of Hollywood studios should not erect ineffective expensive regulatory bureaucracies and charge them with impossible tasks. In the current business atmosphere corporations have little choice but take advantage of the lower wages in the developing world. In the current wealth discrepancy between North and South, leaders of developing nations would be outrageously irresponsible if they devoted any of their meager sources to protect the interests of the rich and powerful. And surely, as long as the income disparity between rich and poor persists, the temptation to pirate would triumph over all principled devotions to an abstract notion of intellectual property. Western leaders should resist the political temptation to enact symbolic and futile legislation to prevent the diffusion of knowledge and focus instead on ways to encourage innovation at home. Protectionist legislation would do little to stop outsourcing at the cost of undermining the free flow of information. Staying ahead requires the U.S. to remain the center of creativity and innovation. The freedom to push the boundaries of our knowledge is the pre-requisite for our prosperity. Ultimately, devoting resources to trying to enforce Western standards of intellectual property in the developing world is not only hypocritical and sometimes cruel, but a futile act. Countries’ most valuable asset is not yesterday’s invention, but tomorrow’s innovation. I don’t draw these historical parallels in order to condone piracy, but rather to point out the wrong-headedness of the West’s often self-righteous position on intellectual property. The United States emerged as the world’s industrial leader by illicitly appropriating mechanical and scientific innovations from Europe. The Europeans tried but failed to stem the tide, just as current national and international agencies pass resolutions condemning piracy, but can do little to stop it unless they consider the realities in which those in the developing world live. There are two important lessons lesson here for the developing world. What worked for the United States was a seemingly contradictory system that protected intellectual property in theory, but did so only sparingly in practice. It makes sense for leaders of the developing nations to pay lip service to intellectual property agreements and occasionally raid a warehouse full of pirated CDs or prosecute a high profile pirate. United States history teaches that symbolic acts and principle talk, accompanied by lax enforcement, are indeed a winning combination. The second lesson is of greater importance. The key to the American economic miracles was the immigration of millions who brought their skills and ingenuity to the United States. And they continue to come. Thanks to its prosperity, the contemporary United States now easily attracts the best and brightest minds from the rest of the world to its shores. And even more than two centuries ago, human capital is central component of knowledge in the digital age. Immigrants form the rank and file of teaching and research at departments of natural sciences in American universities. Engineers from all corners of the globe have turned Silicon Valley into the center of innovation and creativity of our time. And as America prospers, those left behind in the native lands wonder how to stop the brain drain and how to persuade their brightest not to opt for research and business opportunities in North America. Today’s developing nations have few enticements to offer. In the competition for the minds that produce intellectual capital, they are at a distinct disadvantage. Few developing nations, most notably India and Brazil, have the capacity to use the fruits of piracy to generate innovation at home. Most, however, lack the financial and scientific infrastructure required and their efforts begin and end with piracy for the purpose of importing existing technologies. Developing nations, however, must realize that they will not be able to find prosperity through piracy alone. There will always be a limit on the usefulness of transferred technology. Developing nations will remain importers of skill and its product, technology, for as long as their citizens believe that the developed world is the only place they will find freedom and its product, opportunity. PAGE PAGE 10 US Path to Wealth and Power Doron Ben-Atar Fordham University From prabhuram at gmail.com Tue Feb 1 23:25:29 2005 From: prabhuram at gmail.com (Ram) Date: Tue, 1 Feb 2005 18:55:29 +0100 Subject: [Commons-Law] The open-source patent conundrum Message-ID: <68752c9f050201095567b67d8b@mail.gmail.com> The open-source patent conundrum By Bruce Perens The latest tactic in the software-patenting battle is the granting of patent rights to open-source developers. But are the grants really the equivalent of wolves in sheep's clothing? That's not the only movement on the patent front. The possible approval of a software-patenting measure in Europe this Wednesday could bring a barrage of lawsuits on both sides of the Atlantic, affecting proprietary software as well as the open-source community. Let's take a closer look. Sun Microsystems recently made software patents available for use by open-source developers. But its patent grant came with strings attached: The 1,600-some patents may only be used under Sun's Common Development and Distribution License, which is incompatible with the General Public License used on Linux. The irony here is that Sun's open-source license is derived from the same license used for Mozilla. So while claiming to make the patents available to open-source developers, Sun can sue folks who work on Linux rather than Solaris. The irony here is that Sun's open-source license is derived from the same license used for Mozilla. But Mozilla's developers have made most of their software available under the GPL, as well as under terms of their own license. If Sun wants to be a partner in the open-source community, then shutting out the Linux developers isn't a good start. Contrast that with IBM's recent patent grant. Big Blue made available patents for use under any of the more than 50 open-source licenses that were recognized by the Open-Source Initiative as of Jan. 11. The timing is no coincidence. IBM is one of the major forces lobbying for software patenting in Europe. It's possible that IBM's action may help convince European legislators that open source and software patenting are compatible. But IBM's 500 patent grant is tiny next to the 1,500 software patents the company files each year, the 30,000 software patents already granted by the European Patent Office and the hundreds of thousands that annually arise in the United States. According to the American Intellectual Property Law Association, software patent lawsuits come with a defense cost of about $3 million. Even before the case could be fully heard, a single patent suit would bankrupt a typical small or medium-size applications developer, let alone an open-source developer. Even before the case could be fully heard, a single patent suit would bankrupt a typical small or medium-size applications developer, let alone an open-source developer. IBM proposed the creation of a patent commons for open-source, which would probably be operated by Open Source Development Labs, an industry organization that has already dedicated a multimillion-dollar legal defense fund for open-source developers. But that sum could be eaten up by one or two patent lawsuits. OSDL's board and officer roster is dominated by the world's largest software patent holders, including the likes of IBM, Intel and Hewlett-Packard. Although those deep pockets can mitigate some of the financial burden that might arise, it's unreasonable to believe that the OSDL would work against software patenting in the interests of the broader open-source developer community. The most poorly represented party is not open source at all, but the community of small and medium-size proprietary software developers and e-businesses. Every significant software program and business Web site today infringes on one or more software patents granted in the United States. These businesses are just beginning to realize how much they have to lose. Every significant software program and business Web site today infringes on one or more software patents granted in the United States. Meanwhile, European businesses are being lulled into the belief that theirs is a less litigious society and that the patent suits won't arise. They wrongly assume that their patent office will hold to a much higher standard than the one that prevails in the United States. But the software patents already granted in Europe track the text of the U.S. versions, and the same litigious companies file patents on both sides of the Atlantic. Earlier this month, 61 members of the European Parliament filed a resolution asking to restart the software patent debate because, they said, the process had been tainted by politics. But appointed bureaucrats attempted an end-run around the elected representatives, twice scheduling motions that would enable software patent approval without a vote by the representatives. So far, Polish representatives have delayed the item, but final approval could come at a Feb. 2 meeting of JURI, the European Parliament's committee on legal affairs. Many holders of software patents have been holding back on lawsuits until the European software-patenting measure is approved, lest they provide examples against the very legislation they desire. If the legislation passes, expect a rash of lawsuits in both the United States and Europe. Europeans are starting to realize that the software patent battle can't be caricatured as a battle between open source and the rest of the world. They should support the members of the European Parliament in restarting the patent debate. And this time, they should make sure that they are involved. At least the Europeans get to have a debate. In the United States, software and business method patenting is the result of two court decisions. And Americans have yet to get started on legislation to solve the problem. Source: CNet News (http://news.com.com/The+open-source+patent+conundrum/2010-1071_3-5557340.html ) -- "Press ON: Nothing in the world can take the place of Perseverance. TALENT will not; Nothing is more common than unsuccessful men with Talent. GENIUS will not; Unrewarded genius is almost a proverb. EDUCATION will not; the world is full of educated derelicts. Only...PERSISTENCE and DETERMINATION alone are omnipotent." From prabhuram at gmail.com Tue Feb 1 23:50:38 2005 From: prabhuram at gmail.com (Ram) Date: Tue, 1 Feb 2005 19:20:38 +0100 Subject: [Commons-Law] Righting Copyright Message-ID: <68752c9f050201102032387bdf@mail.gmail.com> Righting Copyright Fair Use and Digital Environmentalism Robert S. Banton* Who owns the words you're reading right now? if you're holding a copy of Bookforum in your hands, the law permits you to lend or sell it to whomever you like. If you're reading this article on the Internet, you are allowed to link to it, but are prohibited from duplicating it on your web site or chat room without permission. You are free to make copies of it for teaching purposes, but aren't allowed to sell those copies to your students without permission. A critic who misrepresents my ideas or uses some of my words to attack me in an article of his own is well within his rights to do so. But were I to fashion these pages into a work of collage art and sell it, my customer would be breaking the law if he altered it. Furthermore, were I to set these words to music, I'd receive royalties when it was played on the radio; the band performing it, however, would get nothing. In the end, the copyright to these words belongs to me, and I've given Bookforum the right to publish them. But even my ownership is limited. Unlike a house, which I may pass on to my heirs (and they to theirs), my copyright will expire seventy years after my death, and these words will enter the public domain, where anyone is free to use them. But those doodles you're drawing in the margins of this page? Have no fear: They belong entirely to you. While it was once believed that Marxism would overhaul notions of ownership, the combination of capitalism and the Internet has transformed our ideas of property to an extent far beyond the dreams of even the most fervent revolutionary. Which is not to say that anything resembling a collectivist utopia has come to pass. Quite the opposite. In fact, the laws regulating property—and intellectual property, in particular—have never before been so complex, onerous, and rigid. Copyright protection has been growing in fits and starts since the early days of the Republic. In 1790, a copyright lasted for fourteen years and could be renewed once before the work entered the public domain. Between 1831 and 1909, the maximum term was increased from twenty-eight to fifty-six years. It was extended several more times during the twentieth century until 1998, when the Sonny Bono Copyright Term Extension Act added twenty additional years (to both existing and future intellectual property), increasing copyright protection to seventy years after the death of an author. Some of the most significant changes in intellectual property law took place in the Copyright Act of 1976, after which it was no longer required to register one's work in order to protect it. Anything "fixed in a tangible medium"—e-mail messages, those doodles in the margins of this magazine—automatically became copyrighted. Recent laws—like the 1998 Digital Millennium Copyright Act, which increased protection of copyrighted material on the Internet, and the Sonny Bono Act—have elevated intellectual property's status to such a degree that many courts and corporations often treat it in virtually the same way as they do physical property. This is a category mistake, and one explicitly forbidden according to Article 1, Section 8 of the Constitution, which gives Congress the authority to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.'' Unlike Europe, whose laws center on the "moral rights" of the author to control his creation, American copyright law has always had the strictly utilitarian goal of providing just enough incentive for someone to create. Copyright is a bargain: The government grants a limited right to profit from your intellectual property in exchange for your agreement to give the public limited access to it during that period (such as the "fair use" right of a teacher to make class copies of an essay), and, eventually, for it to lapse into the public domain. But as copyright terms lengthened and intellectual property became a larger part of American industry, the logic of incentive has been overshadowed by the logic of reward, the thinking being that if my work continues to have value, why shouldn't I profit from it for as long as I want? "In our tradition, intellectual property is an instrument. It sets the groundwork for a richly creative society but remains subservient to the value of creativity," writes Stanford law professor Lawrence Lessig in his most recent book, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. "Yet the current debate has this turned around. We have become so concerned with protecting the instrument that we are losing sight of the value." But if we have fallen into what New York University communications professor Siva Vaidhyanathan calls "the property-talk trap," it has had the unintended effect of mobilizing citizens by demonstrating the stake we all have in the debate over how intellectual property should be considered. Once an arcane part of the American legal system, intellectual property law is now at the center of major disputes in the arts, sciences, and politics. People are increasingly aware of the role intellectual property plays in their everyday lives; they bump up against it every time they discover they can't print a passage from an e-book or transfer a song from their computer to their iPod. These days, it is not uncommon to hear people casually conversing about legal concepts like "fair use" and the "first sale doctrine." Much of this awareness results from the well-publicized lawsuits the Recording Industry Association of America has brought against music downloaders. This is unfortunate, because it has created the impression that those in favor of liberalizing copyright law condone the theft of intellectual property. Leaving aside questions about the appropriate legal remedies for, and the economic implications of, downloading, taking copyrighted material for which one has not paid is simply illegal. The fact that illegal downloading is a mass phenomenon indicates that our intellectual property laws aren't working in much the same way that the speakeasies of the '20s and '30s pointed out the irrationality of Prohibition. Neither downloading nor drinking, however, made the activities more legal. It is in more common—and only marginally illegal—pursuits that ordinary citizens are realizing they have a legitimate stake in the debate over the scope of copyright law. As the price of digital video cameras and editing software plummets, the number of people who sync home movies to music, splice together clips from favorite television shows, and even produce documentaries has soared. TiVo and other digital video recorders have made it possible to trade programs over the broadband Internet connections that are finding their way into homes across the country. Young fathers are practically required to transplant images of their newborns into great works of art by way of Photoshop. In December 2004, Google announced "Google Print," a project to bring millions of easily searchable, digitized books to the Internet. The project, which has already begun and may take a decade to complete, will further heighten awareness of our vexed relationship to intellectual property. After digitizing the entire holdings of Stanford and the University of Michigan libraries (as well as sections of the libraries of Harvard, Oxford and the New York Public Library), Google Print will search the texts of these books—although one will only be able to read the entire text of those works whose copyright has lapsed and are therefore in the public domain. As for copyrighted titles, one will be able to search their text for names and key phrases but won't be allowed to read the books themselves (a function like Amazon's helpful, but similarly limited, "Search inside this book" service). Instead, one will be directed to a library or bookstore where the book can be located. As amazing an effort as Google Print is (creating nothing less than a virtual "universal library of knowledge"), its logical goal—giving readers full access to the entire contents of that library—will be undercut by our intellectual property laws. It is an inherently unstable situation, and it is only a matter of time before someone (Amazon? Random House?) develops software to link this vast cache of literature to a convenient print-on-demand service (for which the hardware already exists). When it becomes possible to hold an inexpensive, physical copy of one of Google's digitized titles in one's hands—but only if it was first published prior to 1923 and is therefore in the public domain—people will begin to understand the implications of having something so obviously beneficial (universal access to universal knowledge) tethered to laws from another era. Google Print may be the Trojan Horse of the copyright wars. * * * While a range of copyright-infringing technologies has been changing the way we interact with our culture, critics of excessive copyright protection have been forging a coalition to demand that the law be brought more in line with the capabilities of these technologies. The challenge is considerable. Individual intellectual property rights are often in conflict with one another, and the only groups with a common interest in the direction of such laws are those corporations who want to lock up culture in perpetuity (or "forever minus a day," as former Motion Picture Association of America head Jack Valenti once suggested). Even following the twists and turns of the debate is difficult, since negotiations are seldom held in public. "This cultural war is almost invisible," writes David Bollier in Brand Name Bullies: The Quest to Own and Control Culture. "It is happening quietly and incrementally—in rulings by distant courts, in hearing rooms on Capital Hill and obscure federal agencies, in the digital code that Hollywood and record labels surreptitiously implant into DVDs and CDs." One of the most suggestive responses to this dilemma has come from Duke University law professor James Boyle, who, in his landmark book Shamans, Software and Spleens: Law and the Construction of the Information Society (1996), diagnosed the problem succinctly. "What we have right now is an exponentially expanding intellectual land grab, a land grab that is not only bad but dumb, about which the progressive community is largely silent, the center overly sanguine, and the right wing short-sighted." Boyle's subsequent work is an extended plea that we value the public domain. "Our art, our culture, our science depend on this public domain every bit as much as they depend on intellectual property,'' he writes. Boyle is one of the founders of "digital environmentalism," the movement that is fashioning a new understanding of what the public domain—the "commons," as Boyle and others have called it—might be. The great achievement of the environmental movement, from which Boyle draws inspiration, was its ability to convince a swath of the population—consumers and industrialists alike—that they all had a stake in this thing called "the environment," rather than just the small patch of land where they lived. Similarly, digital environmentalists are raising our awareness of the intellectual "land" to which people ought to feel entitled. Digital environmentalism is a two-pronged movement, with one group raising the awareness of the cultural stakes of intellectual property among everyday citizens, and the other pressing for legislative and legal change. The difference between the two is one of emphasis, with each participating in the battles of the other. Neither are anarchists or utopians; rather, both perceive of themselves as conservatives in the traditional sense of the term. "The point is not that copyright and trademark law needs to be overthrown," writes Bollier. "It is that its original goals need to be restored. Individual creators need to be empowered more than ever. The volume and free flow of information and creativity need to be protected. The public's rights of access and use must be honored. We must strike a new balance of private and public interests that takes account of the special dynamics of the Internet and digital technology." For those in the legal camp, the central event of recent years was Eldred v. Ashcroft, the 2002 Supreme Court case that challenged the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act. Appearing before the court, Lessig argued that perpetually extending the term of copyright violated the Constitution's stipulation that copyright exist for only "a limited time.'' The court rejected Lessig's position by a vote of seven to two, holding that while the extension was perhaps unwise on policy grounds, it was still within Congress's constitutional authority. A second legal challenge, which Lessig brought in 2004, went nowhere. Developments on the legislative front have been, if anything, more discouraging. Laws that strengthen copyright and increase penalties for infringement are introduced, and reintroduced, in Congress every year. In 2004, the Induce Act, a bill so broadly drawn that it would have held manufacturers of TiVo and iPods legally responsible if their customers used them for infringing copyright, died in committee, but it is only a matter of time before a similar piece of legislation passes. The cultural prong of digital environmentalism has had somewhat more success. Represented by writers like Bollier, Vaidhyanathan (Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity and The Anarchist in the Library: How the Clash Between Freedom and Control is Hacking the Real World and Crashing the System), Kembrew McLeod (Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity), and others, they all advocate the path of activism and resistance. Working within existing law, they propose that artists and authors aggressively exercise their intellectual property rights in the face of threats and legal challenges from overbearing copyright holders. Bollier, for one, perceives the work of digital environmentalists as benefiting from the momentum generated by legal challenges like Lessig's. "Acts of civil disobedience against the antisocial, personally intrusive claims of copyright law have only grown since the Eldred ruling, in part because of it," he writes. Their premise is that, like a muscle, intellectual rights grow stronger only when exercised. "For the most part, we don't need any new legislation. Fair use is a great solution, but for it to have any real impact on our culture we need to vigorously and confidently (though not carelessly) employ this legal doctrine in daily life," writes McLeod. The problem, they contend, is less the laws than the lawyers. Lawyers representing copyright holders encourage their clients to limit access to their intellectual property as much as possible. "The lawyers tell us 'You may gaze upon and buy the products of American culture,'" Bollier writes in Brand Name Bullies. "'But don't be so naïve as to think that you can actually use them for your own purposes. We own them.'" And the lawyers representing creators (artists, writers, and filmmakers, for example) who want access to copyrighted material for their work have decided that the transaction cost of boldly exercising fair-use rights is simply too high. Their primary goal is to avoid confrontation, even when they know that the outcome—should the case come to court—would favor their clients. The strategy of the cultural digital environmentalists is twofold. First, they challenge the lawyers at cultural institutions, whether they are book publishers, Internet providers, or movie distributors. Second, they spread the word about how poorly the current intellectual property system balances the rights of individuals and society. This tactic has given birth to the genre of the "copyright horror story." These are tales of intellectual property laws run amok: The artist who receives a cease-and-desist letter from the Vatican for using an image from the Sistine Chapel in a collage titled "The Sistine Bowl-Off." The company that was sued for devising software to teach tricks to a robot dog. McDonald's claim to own phrases like "Play and fun for everyone" and "Hey, it could happen." An Adobe e-book of Alice's Adventures in Wonderland that bears a warning forbidding one to read it aloud. In telling such stories, digital-environmentalist writers are trying to do for intellectual property what muckrakers like Lincoln Steffens did for corrupt governments and Eric Schlosser did for fast food: Go behind the curtain to reveal how something we take for granted—in this case, the cultural commons—really works. "We, as citizens, own these commons. They include resources that we have paid for as taxpayers and resources that we have inherited from previous generations," Bollier writes in his previous book, Silent Theft: The Private Plunder of Our Common Wealth. "They are not just an inventory of marketable assets, but social institutions and cultural traditions that define us as Americans and enliven us as human beings." Some copyright horror stories read like science fiction, depicting life in an anticommons in which everything is owned: letters of the alphabet, familiar phrases, and popular songs like "God Bless America" and "Happy Birthday" (which won't enter the public domain until 2030). And like the best science fiction, these stories pose a serious question: To what extent do we already live in such a place? Is our world an intellectual property version of The Matrix where, despite the illusion of freedom, we are little more than digital sharecroppers, licensers of a culture we mistakenly assume is ours? The science-fiction metaphor helps explain a tension central to the intellectual property wars. We do, in a sense, live in the space between two competing realities: According to the letter of the law, intellectual property is well protected, but legitimate access to it (by artists, parodists, critics) is guaranteed. In practice, however, our rights to access are ambiguously drawn and, as a result, prohibitively expensive to exercise. The difference in views between the commons and the anticommons is one of perspective. Can an artist who spends a fortune in legal fees successfully defending his legitimate fair use of a copyrighted image really be said to have won? "Fuck fair use," Lessig is fond of saying. "Fair use in America simply means the right to hire a lawyer to defend your right to create." * * * The line between science fiction and reality is often difficult to discern, as exhibited by the case of the college student who received trademark #2,127,381 for the phrase "freedom of expression." Fortunately, the student was Kembrew McLeod, who applied for it in order to make a point. McLeod, now professor of communication studies at the University of Iowa, is no stranger to using media pranks to exploit the absurdities of the system. In fact, he even once sold his soul in a glass jar on eBay. McLeod may be the most optimistic of the digital environmentalists. "We can fight back and win, especially because many recent court decisions have upheld free-speech rights in the age of intellectual property," he writes. Getting people to exercise those rights is another issue. "The problem is that many individuals and companies either don't know this or don't want to take a risk." McLeod's and Bollier's books are full of inspirational stories of those who have taken such risks and successfully faced down the corporations who have improperly used their copyrights, such as artist Tom Forsythe (creator of "Food Chain Barbie"), who was awarded $1.8 million in legal fees after Mattel pursued an "unreasonable and frivolous" suit against him. In September 2003, a group of Swarthmore College students posted on the Internet damning copies of internal memos written by employees of Diebold, the largest producer of electronic voting machines. The memos detailed various security flaws in Diebold's machines, and it wasn't long before the students received cease-and-desist letters demanding that they remove the memos from their websites. Although Diebold withdrew its legal threats in the wake of bad publicity, the students sued the company for falsely accusing them of copyright infringement. On September 30, 2004, a judge agreed that Diebold had deliberately misrepresented its copyright claims and awarded the students legal fees and damages. This past summer, director Robert Greenwald made "fair use" of a substantial amount of Fox News footage in order to document its conservative bias in his documentary Outfoxed: Rupert Murdoch's War on Journalism. Fox grumbled about the movie but never sued Greenwald for copyright infringement. In 2004, underground hip-hop artist DJ Danger Mouse edited together the vocals from Jay-Z's Black Album with selections of the Beatles' White Album to produce The Grey Album. Despite a flurry of cease-and-desist letters from EMI/Capitol (which owns the copyright to The White Album), over 170 websites continued to host The Grey Album in support of DJ Danger Mouse's right to create. It went on to become one of the most frequently downloaded independent albums of all time. The Boston Globe called it "the most creatively captivating" album of the year. If anything, Bollier's "bullies" and McLeod's "bozos" are their own worst enemies. "As we look back twenty years from now, Mattel and other businesses like Fox News may ironically be remembered as some of the greatest promoters of fair use," writes McLeod. "Virtually every time these companies try to step on freedom of expression® in court they end up expanding the parameters of fair use in case law, and they also intensify the backlash against this kind of behavior." Recent stirrings in legal theory may give some comfort to the activist wing of digital environmentalism. Taking for granted the fact that the problem is less the letter of intellectual property law than the spirit in which it is interpreted, Richard Posner, a federal appeals judge and prolific legal theorist, and others have suggested some ways to remedy this problem. Foremost among them is the doctrine of "copyright misuse." In his California Law Review article "Fair Use and Statutory Reform in the Wake of Eldred," Posner argues that it is more valuable, and feasible, to strengthen fair-use practices than to lobby for new copyright laws. The problem with the current system, according to Posner, is that copyright owners systematically make improperly broad claims to their rights. The book, DVD, or baseball-game broadcast that comes with a notice stating that no part of the work may be copied without permission is, in fact, in violation of the doctrine of fair use (for which one doesn't need permission). Posner argues that when a copyright holder affixes a warning on copies of his work that "grossly and intentionally exaggerates the copyright holder's substantive or remedial rights, to the prejudice of publishers of public-domain works, the case for invoking the doctrine of copyright misuse" has been made. The copyright misuse doctrine is attractive for a number of reasons. It is a flexible approach to protecting the public-policy goals underlying copyright law (promoting "the progress of science and useful arts") without having to pass new laws every time a technical innovation—radio, movies, television, copy machines, VCR, the Internet—creates a new set of challenges for copyright holders. And it is especially valuable to users of copyright because it is "one of the only copyright-limiting doctrines that arise from actions taken by the copyright holder," writes Kathryn Judge in her Stanford Law Review article "Rethinking Copyright Misuse." Aside from the possibility of being sued, the primary problem for those who want to make fair use of copyrighted material is the uncertainty of their position; while the law seems to support them, their backers and/or insurers may deem the cost of exercising their rights excessive. The doctrine of copyright misuse might provide a mechanism for a creator to address that uncertainty. For example, employing the principle of copyright misuse, an artist who believes he has a legitimate right to make fair use of a copyrighted work can proactively challenge a copyright holder who he believes is protecting his work more broadly than required by copyright law. While such a maneuver wouldn't necessarily guarantee that the artist will prevail (he might of course be wrong), copyright misuse is one way the claims of the copyright holder might be tested without enduring an expensive lawsuit. Copyright misuse isn't as satisfying as a Supreme Court victory or the passing of a new set of intellectual property laws. And it isn't clear that it is robust enough to protect fair use in the way that Posner and others want it to. But perhaps by bolstering the practices of everyday people it will help reclaim a familiar cultural landscape. Because in the end, the goal of digital environmentalism is quite modest: a world in which, as McLeod writes, the digital future looks "a lot like the analog past." *Robert S. Boynton is director of New York University's magazine journalism program. His new book, The New New Journalism: Conversations with America's Best Nonfiction Writers on Their Craft, is being published this month by Vintage. Source: http://www.bookforum.com/boynton.html From shekhar at crit.org.in Fri Feb 4 17:40:43 2005 From: shekhar at crit.org.in (Shekhar Krishnan) Date: Fri, 4 Feb 2005 17:40:43 +0530 Subject: [Commons-Law] NIH Public Access Policy Finally Released Message-ID: From: Peter Suber Date: 4 February 2005 0.12.35 GMT+05:30 To: SPARC-OAForum at arl.org, boai-forum at ecs.soton.ac.uk Subject: [BOAI] NIH public-access policy finally released Reply-To: BOAI Forum The NIH has finally released the language of its public-access policy: Policy on Enhancing Public Access to Archived Publications Resulting from NIH-Funded Research (February 2, 2005) http://grants.nih.gov/grants/guide/notice-files/NOT-OD-05-022.html This is essentially the same version of the policy that I described as weakened and watered down in yesterday's issue of the SPARC Open Access Newsletter. I refer you there for my comments on the policy. http://www.earlham.edu/~peters/fos/newsletter/02-02-05.htm#nih Peter ---------- Peter Suber Open Access Project Director, Public Knowledge Research Professor of Philosophy, Earlham College Author, SPARC Open Access Newsletter Editor, Open Access News blog http://www.earlham.edu/~peters/ peter.suber at earlham.edu _____ Shekhar Krishnan Room 213, Crown Plaza International 346, Hennur Main Road Kalyan Nagar, Bangalore 560043 India http://crit.org.in/members/shekhar http://shekhark.livejournal.com From esparun at vsnl.com Sun Feb 6 15:02:52 2005 From: esparun at vsnl.com (esparun) Date: Sun, 06 Feb 2005 10:32:52 +0100 Subject: [Commons-Law] Kasipur Issue Message-ID: <200502061032.52935.esparun@vsnl.com> esparun at bgl.vsnl.net.in 05.02.2005 18:00 Subject: Fwd: Memo and Press Release on Kashipur! MEMORANDUM To: The Resident Commissioner, Government of Orissa, New Delhi 1 February 2005 Sir, Re: Police Repression of Movement Against UAIL, Kashipur We, the undersigned individuals and organizations, are extremely concerned by the continued and ongoing police repression in Raygada district, Orissa. As you know, local tribals, and individuals organized under the banner Prakrutika Sampad Surakhya Parishad (PSSP) have for many years now been intensely opposing the setting up of an aluminium plant, UAIL, in Kashipur. The situation has deteriorated for local residents recently with intensified police presence in the area, and with plans to set up a police post and police barracks in village D. Karol near Kucheipadar. On 1 December, a group of about 300 protestors peacefully opposing the setting up of this police post were targetted by assembled police. The protestors were abused, tear-gassed, and lathi-charged. A number of them were injured, some seriously. And instead of being treated for injuries, a number of these protestors were sent to police custody. All of this happened in the presence of the District Collector, Rayagada, Pramod Kumar Meherda, and the Superintendent of Police, Rayagada, Sanjay Kumar. Following this incident, protests have been held in the area. Once again, instead of engaging with the people’s demands, a hallmark of a healthy democracy, your government has simply been using fear and intimidation. The CRPF has been deployed and has been holding flag marches in the area. The Indian Reserve Battalion  and the Orissa State Armed Forces have also been deployed. Huge numbers of police have been deployed for the last few weeks, at Tikri police station and at Karol near Kucheipadar. Police have been roaming the villages even at nights and picking up people, hence causing fear in the area. Private goons employed by the company have been terrorizing people in the area. A number of people have been picked up and detained from the villages around, both on 1 December and in the days that followed. For instance: 1. On the night of 2 December, the police force picked up Naveen Nayak and Loknath Nayak , both committee members of PSSP >from their homes.   2. Bulka Miniaka, president of PSSP and convenor of the Basundhara Suraksha Samiti, was picked up from his village Barigan, Laxmipur Block, Koraput district. 3. On 5 December, Duryodhan Dora of Tikrapada and Bhobani Goud of Lachhuguda were picked up by the police from Dongasil market place.  They  are still in custody.  4. Later, Jagannath Sahu and Chitrasen Bag of Bagrijhola were arrested from Tikri and Rayagada respectively. On 18 Jan 2005, Trinath Majhi, Umashankar Majhi and Samrendra Majhi of Kucheipadar were detained by the police while returning from a local market. In short, people have also been detained both in democratic protests and in everyday situations of daily existence. People are now terrified even to go to local haats, an age-old market institution central to people’s economic lives and well-being. To the best of our knowledge, eighteen people from Kashipur and Laxmipur are still in custody. Sustenance, and the environment. Historically, such mining both in India and abroad has only benefited corporations and urban elites, and local tribals and the poor pay the price. PSSP, local tribals, and other supporters have instead been articulating a completely different vision of development, an understanding that places locals and the poor at the centre. For instance, the movement has instead been demanding from your government schools and hospitals, surely a reasonable demand in a country that claims to be one of the largest democracies in the world. Hence, we demand: 1. All those who have been taken in custody in Kashipur and Laxmipur be released immediately. 2. Any charges placed against them be dropped unconditionally. 3. An enquiry be held against the lathi-charge and police repression in village Karol on 1 December and subsequently in the area. Cases be launched against the police and the company’s goons who have been terrorizing people around. 4. All the police and paramilitary forces currently deployed in the area be withdrawn immediately and the police post and barracks be dismantled. 5. That your government cancel the MOUs given to UAIL to carry out mining operations in the area. Such permission also be withdrawn to Sterlite’s alumina project in Lanjigarh. Rabi Shankar (PSSP), Yogendra Yadav, Harish Dhawan, Ranjana Parhi 72, Deshbandhu Apts, I.P. Extension, Delhi 110092 And the following organizations present at the demonstration: 1. Prakrukika Sampad Surakhya Parishad (PSSP), Orissa 2. People’s Union for Democratic Rights (PUDR), Delhi 3. Saheli 4. Sandhaan 5. All India People’s Resistance Forum (AIPRF) 6. Jagori 7. The Other Media 8. Democratic Students Union (DSU) 9. Amnesty International (India) 10. All India Coordinating Forum of Adivasi/ Indigenous Peoples (AICFAIP) 11. Samajwadi Jan Parishad PRESS RELEASE New Delhi, 1st February 2005: Protesting against the state-sponsored violence against indigenous and dalit peoples in Orissa to facilitate the entry of mining companies into bauxite rich forest lands, members of Orissa-based struggle group Prakrutik Sampada Surakshya Parishad (PSSP), alongwith New Delhi-based youth and human rights activists, writers and intellectuals today submitted a memorandum to the Resident Commissioner of Orissa after a peaceful demonstration in front of the Orissa Bhavan in New Delhi this morning. The memorandum demanded the immediate and unconditional release of 18 PSSP members who have been illegally arrested since December 2004 and to stop the human rights abuses by the state police on the villagers around Kashipur who have been for years peacefully resisted the moves by bauxite mining consortium Utkal Alumina International Ltd (UAIL) to take over their land and forests for a 100% export oriented alumina mining and refinery project. The Rs 4500 crore UAIL is a joint venure of Indian company HINDALCO (55% share) and Canadian company ALCAN (45%). TATA, HYDRO (Norwegian) and ALCOA (America) who were earlier part of the venture, were forced to withdraw from the project due to the mass struggle and opposition by the villagers. The project will source bauxite from a 195 million ton deposit in Baphli Mali, a sacred hill for the adivasis. The promoters also plan to set up an  alumina refinery near Kucheipadar, from where it will be exported. At the refinery’s capacity of consuming 9 million tonnes of bauxite per year, the Baphlimali deposit will be exhausted within two decades. The mines and refinery are slotted to come up in adivasi-majority areas that are protected by the Fifth Schedule of the Constitution. The Fifth Schedule guarantees the right of land to adivasis, and prohibits the transfer of these lands to non-tribals for any purpose. "The Government of Orissa is in the hands of the mining companies. Since early December, the Government has unleashed a reign of terror in the villages near the proposed mining project, and is keen on evicting the people at gun-point," said Rabi Shankar of PSSP. On November 25, 2004 Orissa Chief Minister Naveen Patnaik was quoted as saying that anti-mining struggles will be firmly dealt with. From late November, villages that are protesting the Utkal Alumina project proposed on their lands have been under siege by the police. On  December 1st , 2004, the state police launched a brutal lathi charge on 400 adivasis, mostly women, who had gathered to protest the inauguration of a road to a proposed bauxite-mining site in Baphlimali owned by ALCAN. As a result, 16 people were critically injured and three women were beaten unconscious. Since this incident, platoons of armed police with firing orders have occupied Kucheipadar village - the center of the adivasi struggle. Eighteen activists of PSSP, the umbrella organization of adivasis spearheading the struggle against bauxite mining have been picked up from their villages mostly in the night in separate incidents and are now in jail without access to bail. "This is not the first time that adivasis of Kashipur are facing such state repression and police brutality," said Rabi Shankar. On December 16, 2000, three adivasis were killed in Kashipur when police fired on unarmed villagers associated with the people's struggle against bauxite mining. Following international outrage at the incident, one of UAIL's original stakeholders, Norsk Hydro of Norway, withdrew from the project in a move that clearly implicated both the UAIL and the Orissa government. The situation in rest of Orissa is not very different. As many as five bauxite mining and alumina projects are in the pipeline, covering 5 blocks of 3 districts -- Kashipur ( Rayagada district) , Luxmipur and Dasamantpur ( Koraput), Lanjigada and Thuamulrampur (Kalahandi). Sterlite is proposed to source bauxite from Sasubohu mali of Kashipur block. Larson and Tubro from Sijimali and Kutrumali ( Kashipur block), Birla from Kodinga Mali ( Luxmipur block) and Vedanta from Niyamgiri and Khandual mali of Kalahandi district. "The total investment in the Orissa bauxite projects is to the tune of Rs 20,000 crores. Taking into consideration the present price of even just UAIL, the joint venture will reap a profit of at least Rs 2,88,000 crore during the 22-23 years of the project life, whereas the government will get Rs. 1300-1400 crores as royalty during that period. And the adivasis and dalits of these villages will get state repression, and a lifetime of misery and slum life," added Ranjana Padhi of Saheli Women's Resource Centre, Delhi, a group supporting the Kashipur peoples' struggle. For more information, contact: Ranjana Padhi 9811150884; Harish Dhawan 9811667776 Visit: “Alcan't In India"  http://www.saanet.org/alcant (on behalf of the Core Committee) Coordinator, All India Coordinating Forum of the Adivasi/Indigenous Peoples (AICFAIP) Secretariat AA-1/125 (First Floor) Safdarjung Enclave New Delhi 110029 India Tel: +11-51652451/51652452 Fax: +11-51013382 Email: aicfaip at rediffmail.com email: admin at del3.vsnl.net.in -- From jace at pobox.com Sun Feb 6 22:23:11 2005 From: jace at pobox.com (Kiran Jonnalagadda) Date: Sun, 6 Feb 2005 22:23:11 +0530 Subject: [Commons-Law] Microsoft makes anti-piracy move In-Reply-To: <20050127061040.94162.qmail@web86109.mail.ukl.yahoo.com> References: <20050127061040.94162.qmail@web86109.mail.ukl.yahoo.com> Message-ID: <9607E8F6-785F-11D9-8CDA-000A95684A18@pobox.com> On Jan 27, 2005, at 11:40 AM, TAHIR AMIN wrote: > Microsoft makes anti-piracy move > > The Windows Genuine Advantage scheme means people will have to prove > their software is genuine from mid-2005. > > It will still allow those with unauthorised copies to get some > crucial security fixes via automatic updates, but their options would > be "limited". > > Microsoft releases regular security updates to its software to > protect PCs. > > Either PCs detect updates automatically or users manually download > fixes through Microsoft's site. > > Those running pirated Windows programs would not have access to other > downloads and "add-ons" that the software giant offers. I'd love to see how Microsoft manages to identify "genuine" users without violating privacy. This is going to be fun. -- Kiran Jonnalagadda http://www.pobox.com/~jace From paivakil at yahoo.co.in Mon Feb 7 13:12:14 2005 From: paivakil at yahoo.co.in (Mahesh T. Pai) Date: Mon, 7 Feb 2005 13:12:14 +0530 Subject: [Commons-Law] Microsoft makes anti-piracy move In-Reply-To: <9607E8F6-785F-11D9-8CDA-000A95684A18@pobox.com> References: <20050127061040.94162.qmail@web86109.mail.ukl.yahoo.com> <9607E8F6-785F-11D9-8CDA-000A95684A18@pobox.com> Message-ID: <20050207074214.GA4943@nandini.home> Kiran Jonnalagadda said on Sun, Feb 06, 2005 at 10:23:11PM +0530,: > I'd love to see how Microsoft manages to identify "genuine" users > without violating privacy. This is going to be fun. They already do. People who (mis)use such `features' are called virus writers. -- Mahesh T. Pai <<>> http://paivakil.port5.com Slander - False Confuse - Unclear Obfuscate - Dubious From megeorgekurian at yahoo.com Mon Feb 7 15:24:49 2005 From: megeorgekurian at yahoo.com (george kurian) Date: Mon, 7 Feb 2005 01:54:49 -0800 (PST) Subject: [Commons-Law] film screening - "Land First" In-Reply-To: <20050207074214.GA4943@nandini.home> Message-ID: <20050207095449.3894.qmail@web20023.mail.yahoo.com> There will be a screening of the film "Land First" at the lecture hall of the India International Centre Annexe, 40 Max Mueller Marg, next Saturday 12th February at 7pm. The film follows the month-long march by a group of Gandhian activists through Orissa, India’s poorest state. As they journey, the marchers learn about the variety of land-related problems that are faced by people, many of them tribals, living on the margins of Orissa’s society – growing landlessness, displacement by industry, forest department pressure and mafia intimidation. The marchers make their way towards Bhubaneswar, the state capital, seeking to put pressure on the government. Will it listen to their demands to start taking the problems seriously? the film is made by amanda burrell an independent film maker from the UK who has been based in india for the last one and a half years she has previously worked for the BBC and has been part of other productions. --------------------------------- Do you Yahoo!? Yahoo! Mail - Helps protect you from nasty viruses. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050207/858b13c3/attachment.html From eddank at aya.yale.edu Thu Feb 3 06:20:35 2005 From: eddank at aya.yale.edu (Eddan Katz) Date: Wed, 2 Feb 2005 19:50:35 -0500 Subject: [Commons-Law] Yale "Global Flow of Information" Conference - Apr. 1-3, 2005 Message-ID: An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050202/cc6c6d03/attachment.html From prabhuram at gmail.com Wed Feb 2 15:06:48 2005 From: prabhuram at gmail.com (Ram) Date: Wed, 2 Feb 2005 10:36:48 +0100 Subject: [Commons-Law] =?iso-8859-1?q?No_Break_for_Nestle=B4s_Kit-Kat?= Message-ID: <68752c9f05020201366966fd45@mail.gmail.com> Dear all, This is with reference to the developments in the European Court of Justice (Case C-353/03) past week, wherein it was ruled that Nestle cannot trademark its slogan "Have a Break...Have a Kit-Kat" because it lacks specific character. Advocate General Juliane Kokott delivered her Opinion in Case C-353/03, the HAVE A BREAK reference to the ECJ from the UK Court of Appeal. The opinions of the Advocate General are followed in about 80% of the cases by the full court. A decision is expected within several months. According to the Advocate General, a sign that is used as part of, or in conjunction with another mark can acquire distinctive character: § It is not the practice of Community institutions to refuse registration to parts of marks which have acquired distinctiveness through use. § Signs must be used in the form it which they are applied for to be registered. If distinctiveness is said to derive only from the subsidiary mark's similarity to the principle mark, there can be no acquired distinctiveness. However, if the distinctiveness derives from use as part of or in combination with the principal mark, there can be acquired distinctiveness. § In practice it may be difficult to show that an element of a mark that has only been used as part of another mark has acquired distinctiveness. The fact that a sign causes consumers to have a reflex reaction such as to complete the HAVE A BREAK phrase with HAVE A KIT KAT it not enough on its own. Instead it must be shown that a product bearing the sign HAVE A BREAK will be attributed to Nestlé. If consumers just had cause to wonder whether products bearing the HAVE A BREAK sign were made by Nestlé this would merely give rise to likelihood of confusion. Nestle applied in 1995 to have the "Have a Break" phrase registered for all chocolate products. Rival Mars Inc objected. The case was brought in Britain, and authorities there blocked the Nestle application on the grounds that the phrase lacked any inherent distinctive character. Nestle appealed and the British court asked the European Court to issue an opinion. In addition, Nestle has also lost out on another case for getting the shape of the KIT KAT bar registered as a Community trade mark in EU. The Board of Appeal upheld the decision not to register the shape on grounds of lack of inherent and acquired distinctiveness. warm regards Ram From prabhuram at gmail.com Thu Feb 3 15:12:28 2005 From: prabhuram at gmail.com (Ram) Date: Thu, 3 Feb 2005 10:42:28 +0100 Subject: [Commons-Law] =?iso-8859-1?q?Peter_Jaszi=B4s_Study_on_Documentar?= =?iso-8859-1?q?y_Film_Making_and_the_escalating_costs_of_copyright?= =?iso-8859-1?q?_clearances?= Message-ID: <68752c9f0502030142696d7e45@mail.gmail.com> Dear all, Peter Jaszi and Pat Aufderheide have published the final report from their year-long study, Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers. The study explores the implications of the rights clearance process on documentary filmmaking, and makes recommendations to lower costs, reduce frustration, and promote creativity. The Center for Social Media at American University and the Program on Intellectual Property and the Public Interest (PIPPI) at the Washington College of Law have conducted this year-long research project. Pat Aufderheide, a longtime critic and scholar of independent media and director of the Center for Social Media, and law professor Peter Jaszi, who heads PIPPI, supervised the project, that was funded by the Rockefeller Foundation. Jaszi and Aufderheide have found in their study that: 1. Rights clearance costs are high, and have escalated dramatically in the last two decades 2. Gatekeepers, such as distributors and insurers, enforce rigid and high-bar rights clearance expectations 3. The rights clearance process is arduous and frustrating, especially around movies and music 4. Rights clearance problems force filmmakers to make changes that adversely affect—and limit the public's access to--their work, and the result is significant change in documentary practice 5.Filmmakers, while sometimes seeing themselves as hostages of the "clearance culture," also are creators of it 6. Filmmakers nonetheless exercise fair use, and imagine a more rational rights environment The report also has a series of recommendations. The report is available at the following url: http://www.centerforsocialmedia.org/rock/finalreport.htm warm regards Ram From shuddha at sarai.net Tue Feb 8 13:25:09 2005 From: shuddha at sarai.net (Shuddhabrata Sengupta) Date: Tue, 08 Feb 2005 13:25:09 +0530 Subject: [Commons-Law] Niyogi Murder Case - Acquittal of industrialists - Critique, and a query Message-ID: <4208705D.9090507@sarai.net> Dear All, Apologies to those who are also on the Reader List for cross posting a post that was sent to the Reader List by Rakesh Shukla. I thought that it would be of interest to people on this list as well. In the posting that I am forwarding below, Rakesh Shukla makes a critique of the Supreme Court acquital of two of the six accused Moolchand Shah owner of Simplex industries and Chandrakant Shah owner of Oswal Iron and Stee Private Ltd in the Shankar Guha Niyogi murder case. His argument is that the court did not give sufficient importance to the circumstantial evidence against Moolchand Shah and Chandrakant Shah, or denied that it could prove anyhting amounting to a conspiracy to kill Niyogi entered into by these two accused. Going by the facts as presented by Rakesh Shukla in this post, would people on this list think that in a normal murder trial, the kind of evidence that is pointed to here, would be considered sufficient to secure a conviction? Hoping to hear your opinions regards Shuddha -------- Original Message -------- Subject: [Reader-list] Niyogi Murder Case - Acquittal of industrialists - Critique Date: Tue, 8 Feb 2005 13:03:22 +0530 From: Rakesh To: CHRONICLE OF A MURDER ACQUITTAL FORETOLD By Rakesh Shukla In a recent decision, the Supreme Court acquitted Moolchand Shah owner of Simplex industries and Chandrakant Shah owner of Oswal Iron and Steel Private Ltd in the Shankar Guha Niyogi murder case. The wheels of justice having ground have spewed forth the conviction of Palton Mallah for the murder. Palton is a young man from Gorakhpur involved in petty crime in the Bhilai region. He had neither any connection nor any animosity towards Niyogi. Palton was the hired killer. No one has even remotely suggested any reason why Palton Mallah acting on his own should kill Niyogi. The conviction of the two industrialists by the trial court appears to be the only appears to be the only instance of the punishment of someone powerful for the murder of a social crusader fighting for the exploited. Niyogi known for his brilliant combination of struggle with constructive work, was shot dead at Bhilai in Chattisgarh on September 28, 1991. In an audio tape discovered within days of his assassination by his children, Niyogi named Moolchand Shah, Kailashpati Kedia of the Chattisgarh Distelleries and an IG of police as persons conspiring to eliminate him. The "contract killing" of Niyogi was ordered because he was organizing the contract workers and demanding implementation of labour laws. The first charter of demands submitted by Niyogi to Simplex asked for work an eight-hour working day, regularization of contract work for work of a permanent nature, living wages, safety appliances, medical and earned leave. The industrialists reacted by dismissing 4,200 workers. In addition, attacks were launched on workers by hired thugs. As per a document seized from the house of Moolchand Shah, an "action plan tocombat Niyogi" was formulated. Pressure was brought to bear and in February 1991 Niyogi was arrested. In July 1991, proceedings to extern Niyogi from Chattisgarh were initiated. However, both these attempts failed to check the workers movement. This failure of the arrest and externment seems to have led to the conspiracy which resulted in Niyogi's assassination. On the basis of ballistic evidence, incriminating documents, extra-judicial confessions, witnesses, Niyogi's cassette and diaries, the trial court convicted Moolchand Shah, Chandrakant Shah, the hired assassin Palton Mallah and three others of murder. The audio tape and entries in the diary by Niyogi naming individuals responsible for his death have been taken by the apex court to be of no particular relevance on the specious reasoning that they "do not refer to an event which ultimately was the cause of his death". Under Article 32(1) of the Evidence Act in addition to statements as to cause of death even statements "as to any of the circumstances of the transaction which resulted in his death" are also relevant facts in case the person is dead. The cassette in Niyogi's voice and entries in the diary do indicate circumstances of the transaction which led to his murder. Visit to Nepal to for purchase of firearms evidenced by entries of foreign made firearms on the back of old hotel bills have also been held to not further the conspiracy on the ground that, "No bills proving purchase of foreign-made weapons were recovered from any of these accused persons". There is little chance that a purchase of firearms in Nepal to commit a killing in India would be accompanied by bills proving purchase. Watching the movements of a person to work out the best time and opportunity to eliminate him seems to be something of a standard operating procedure for assassinations. Recovery of slips from the accused bearing the registration of the car and jeep being used by Niyogi indicating surveillance by them have been discarded with a bald, "We are not able to attach any further importance to these documents". Similarly recovery of a letter from one of the accused on the day of the murder to another accused stating that Rs 20,000/- had been paid for the job has been held to show that there was "some money transaction betweenthe second accused and the sixth accused" and not in any way establishing that it was "consideration for the illegal act carried out at the instance of the second accused". The award, as part payment for the assassination, of the contract of a parking stand in Maurya Talkies has been held to be innocuous. Even absconding by the accused, generally taken as a sign of guilt, has been explained away as understandable in view of the murder of a trade union leader and allegations against the industrialists. Observing that extra-judicial confession by Palton Mallah naming the industrialists has only corroborative value, the Court declaring that there is no substantive evidence acquitted the main persons responsible for the murder. In a case of circumstantial evidence, there is no direct evidence of eye-witnesses to the murder. It is the weaving together of the factum of financial loss due to agitations led by Niyogi, the watching of his movements, the trip to Nepal to purchase firearms, the audio cassette and entries in the diary naming individuals, payment of Rs 20,000/- and the absconding taken together which do seem to establish a conspiracy as held by the trial court. The workers of Chattisgarh have struggled for decades for the rights that are theirs as per the laws of the land. The acquittal of the industrialists is far more than a verdict in a criminal case of murder. Faith in the rule of law and the direction of the struggles of the workers is bound to be impacted by the judgement. Rakesh Shukla _________________________________________ reader-list: an open discussion list on media and the city. Critiques & Collaborations To subscribe: send an email to reader-list-request at sarai.net with subscribe in the subject header. List archive: -- 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 _______________________________________________ Reader-editorial mailing list Reader-editorial at sarai.net https://mail.sarai.net/mailman/listinfo/reader-editorial -- 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 keith at thememorybank.co.uk Tue Feb 8 15:23:53 2005 From: keith at thememorybank.co.uk (Keith Hart) Date: Tue, 08 Feb 2005 10:53:53 +0100 Subject: [Commons-Law] we are all pirates Message-ID: <42088C31.1000000@thememorybank.co.uk> On 2nd February, a 28-year-old French teacher, Alain Oddoz, was the first of some fifty victims to be fined for 'illegal downloading of songs from the internet. In a story, headed '15,000 euros for an accidental pirate', the left-wing newspaper Liberation reports that he downloaded 10,000 songs onto his hard disk and was considered 'a big fish' in the current legal campaign of the French music industry. This campaign has as its objective to discourage people from making free peer-to-peer exchanges of music. It has provoked a campaign against 'repression of net pirates' by the magazine Nouvel Observateur, under slogans such as 'Liberez l@ musique' and 'nous sommes yous pirates'. Several prominent artists and politicians have already signed. The Liberation article of 3rd February (they charge 2 euros for a look, so there is no point in giving the URL) also contains an interview with academic, Fabrice Rochelandet, who argues for self-regulation and against trials and licences. See below for Nouvel Observateur's peer-to-peer special (in French): http://permanent.nouvelobs.com/culture/20050201.OBS7675.html Keith Hart From patrice at xs4all.nl Tue Feb 8 17:01:42 2005 From: patrice at xs4all.nl (Patrice Riemens) Date: Tue, 8 Feb 2005 12:31:42 +0100 Subject: [Commons-Law] we are all pirates (URL) In-Reply-To: <42088C31.1000000@thememorybank.co.uk> References: <42088C31.1000000@thememorybank.co.uk> Message-ID: <20050208113142.GB24367@xs4all.nl> Liberated URL & article from Liberation: http://www.liberation.fr/page.php?Article=272671 Et voila l'article.... (en ascii!) Une amende avec sursis pour avoir téléchargé de la musique mercredi 02 février 2005 (Reuters - 19:16) PARIS - Un enseignant de 28 ans, Alain Oddoz, poursuivi pour avoir téléchargé et partagé de la musique sur internet, a été condamné mercredi à une amende de 3.000 euros avec sursis par le tribunal correctionnel de Pontoise (Val-d'Oise), dans la première affaire de ce type jugée au pénal. Il a été reconnu coupable de "contrefaçon", notamment pour avoir mis la musique téléchargée à la disposition d'autres internautes. Le sursis prononcé signifie qu'il ne paiera pas l'amende s'il ne récidive pas. De plus, le tribunal a décidé que la sanction ne serait pas inscrite à son casier judiciaire. La Société civile des producteurs phonographiques, la Sacem (Société des auteurs, compositeurs et éditeurs de musique) et deux organisations représentant l'industrie musicale, parties civiles, se sont d'ailleurs vu accorder en réparation un total de 10.000 euros de dommages et intérêts. A l'audience le 15 décembre, leurs avocats en avaient réclamé environ quatre fois plus. Le parquet avait alors requis une amende de 1.500 euros, sans sursis. La peine maximale encourue était de trois ans d'emprisonnement et de 300.000 euros d'amende. L'enseignant aurait téléchargé et mis à disposition sur internet 10.000 titres, soit l'équivalent de 614 albums. A l'audience, il a nié avoir partagé les titres téléchargés. L'industrie du disque et les auteurs-compositeurs se déclarent très inquiets du développement du téléchargement, susceptible selon eux de tuer leur métier. Les poursuites avaient été déclenchées après une enquête d'une unité spéciale de la gendarmerie qui avait surveillé sur internet des forums de discussions et localisé un site, France Troc, sur lequel 302 internautes connectés échangeaient des fichiers musicaux. Le prévenu, qui était l'une de ces 302 personnes, semble avoir été pris au hasard. "Il y en a 301 autres, et ça tombe sur vous ; vous n'avez pas de chance", avait dit à l'audience le président du tribunal. Cette affaire est jugée alors que dans le Nouvel Observateur de jeudi 70 artistes et personnalités, dont Jean-Louis Aubert, Manu Chao, Benabar et la députée PS Ségolène Royal, signent un appel intitulé "Libérez la musique" qui demande l'arrêt des poursuites contre les internautes téléchargeant illégalement de la musique. "Comme huit millions de Français au moins, nous avons nous aussi téléchargé un jour de la musique en ligne et sommes donc des délinquants en puissance. Nous demandons l'arrêt de ces poursuites absurdes", dit le texte, qui propose un débat public entre le gouvernement, les industriels et les artistes. Liberation? Pas de problemes! cordial, le gang de Bangalore From patrice at xs4all.nl Tue Feb 8 17:28:43 2005 From: patrice at xs4all.nl (Patrice Riemens) Date: Tue, 8 Feb 2005 12:58:43 +0100 Subject: [Commons-Law] we are all pirates (URL) (add comment) In-Reply-To: <20050208113142.GB24367@xs4all.nl> References: <42088C31.1000000@thememorybank.co.uk> <20050208113142.GB24367@xs4all.nl> Message-ID: <20050208115843.GB1378@xs4all.nl> On Tue, Feb 08, 2005 at 12:31:42PM +0100, Patrice Riemens wrote: > Liberated URL & article from Liberation: > > Les poursuites avaient été déclenchées après une enquête d'une > unité spéciale de la gendarmerie qui avait surveillé sur internet des > forums de discussions et localisé un site, France Troc, sur lequel 302 > internautes connectés échangeaient des fichiers musicaux. > > Le prévenu, qui était l'une de ces 302 personnes, semble avoir été > pris au hasard. "Il y en a 301 autres, et ça tombe sur vous ; vous n'avez > pas de chance", avait dit à l'audience le président du tribunal. Strange... in the Netherlands such a remark by a presiding judge would be considered frivolousand would probably never have been made. And if so, the verdict would most certainly have been struck down in appeal, as the defendant would have succesfully pleaded he's victim of procecutional arbitraryness... From annymcbeal at gmail.com Wed Feb 9 12:07:05 2005 From: annymcbeal at gmail.com (anu) Date: Wed, 9 Feb 2005 12:07:05 +0530 Subject: [Commons-Law] Article from FirstMonday Message-ID: <8a1161ed05020822376d1ca86c@mail.gmail.com> Hi All, Here is the link to an interesting article on the media representation of hackers, hacking, hacktivism, and cyberterrorism. Enjoy Anuranjan http://firstmonday.org/issues/issue10_2/vegh/ From prabhuram at gmail.com Wed Feb 9 15:21:57 2005 From: prabhuram at gmail.com (Ram) Date: Wed, 9 Feb 2005 10:51:57 +0100 Subject: [Commons-Law] (Cape Times) Globalisation threatens world's indigenous languages - 32% of them African Message-ID: <68752c9f050209015150d125e@mail.gmail.com> Globalisation threatens world's indigenous languages - 32% of them African February 9, 2005 By Terry Leonard Maputo: Along a boulevard lined with flowering acacias, young people in designer clothes and high-heels chatter on the sidewalk struggling to be heard over the driving Latin rhythms spilling from a nightclub. Maputo's vibrant nightlife lets people forget it is the capital of one of the world's poorest countries. Here you can eat Italian, dance like a Brazilian and flirt in Portuguese. One thing that's in ever shorter supply and perhaps in even less demand: Mozambique's own indigenous languages - the storehouse for the accumulated knowledge of generations. "Sons no longer speak the language of their fathers... our culture is dying," laments Paulo Chihale, director of a project that seeks to train Mozambican youths in traditional crafts. While Mozambique has 23 native languages, the only official one is Portuguese - a hand-me-down tongue from colonial times that at once unifies a linguistically diverse country and undermines the African traditions that help make it unique. The United Nations estimates half of the world's estimated 6 000 languages will disappear in less than a century. Roughly a third of those are spoken in Africa and about 200 already have less than 500 speakers. A recent UN Conference on Trade and Development report on protecting traditional knowledge argues that beyond a devastating impact on culture, the death of a language wipes out centuries of know-how in preserving ecosystems - leading to grave consequences for biodiversity. Villagers in Indonesia's Kayan Mentarang national park, for example, have for centuries practised a system of forest management called Tanah Ulen or "Forbidden land". On a rotating basis, elders declare parcels of the forest protected, prohibiting hunting and gathering. In Maputo, Chihale looks up from his cluttered desk at MozArte, a UN- and government-funded project that seeks to teach youths to earn a living through traditional crafts. "Our culture has a rich oral tradition, oral history, stories told from one generation to another. But it is an oral literature our kids will never hear," said Chihale. Already, 96% of the languages spoken on Earth are spoken by just 4% of the population. Experts estimate half the people in the world now use in their daily life one of the eight most widespread languages: Chinese, English, Hindi, Spanish, Russian, Arabic, Portuguese and French. Experts say 234 African languages have already disappeared and that 32% of the endangered languages on Earth are African. Mozambican linguist Rafael Shambela says that the pressures from globalisation are often too great to resist. To conserve native languages and culture, he argues, societies must ascribe to them an inherent value. On a small campus along a dirt road south of Maputo, Shambela has joined a government effort to write textbooks and curriculums that will allow public school students to learn in 16 of the country's 23 languages. "A language is a culture," said Shambela, who works for Mozambique's National Institute for the Development of Education. "It contains the history of a people and all the knowledge they have passed down for generations." It took 12 years for Mozambicans to kick out Portuguese colonialists. But at independence in 1975, they kept the language because it was the only one known well enough by everyone to unify the country. The trade-off: the rites and rhythms of traditional life have been eroded. "From dating to mourning, the rules are becoming less clear," said Shambela. Examples from other nations bode badly for Mozambique's efforts to preserve its languages. India has 25 official languages and South Africa 11. Despite government conservation programmes, language in those countries is rapidly become homogenised, said Meenal Shrivastava, a professor and expert on globalisation at Wits University in Johannesburg. - Sapa-AP From prasanna_aid at yahoo.com Wed Feb 9 17:38:56 2005 From: prasanna_aid at yahoo.com (Prasanna Saligram) Date: Wed, 9 Feb 2005 04:08:56 -0800 (PST) Subject: [Commons-Law] URGENT PRESS RELEASE:26th February 2005 Global Day of Action against the Indian Patents Amendment Message-ID: <20050209120856.59037.qmail@web50306.mail.yahoo.com> PRESS RELEASEFor Release: 8th February 2005 Global Campaign Against Indian Patent Amendment (www.gcaipa.org) 26 February, Global Day of Action against �TRIPS +�, the Indian Patent Ordinance �We call February 26, 2005, the Global Day of Action.� �We call it the Anti-Patents day for drugs� �We call the day we refuse to be taken for granted by the Price-Setters, Institutions and Governments.� �We call February 26, 2005, Our day to Say �We fight for our right to health.� Our life should not be held at premium against our ability to pay� �No to patented, expensive drugs, Yes to generic, affordable drugs. Yes to Life!� �We say �NO� to patent amendments in India. We say �YES� to our sense of justice and humanity � roll back the patent amendments.� February 26, 2005 has been named a day of international protest against the actions of the Government of India. People around the world are calling to question the humaneness of a patent modification that permits the private sector to profit from public health. The Indian Patent Ordinance prescribes �TRIPS-PLUS� standards, which takes the country beyond the commitments agreed to under the TRIPS agreement. Instead there is a roll back of the most progressive P patents Act in developing countries. The Patent act has fostered the pharmaceutical industry in India, provided affordable medication to millions within India and the rest of the developing world. As of December 26, 2005, by Presidential Ordinance, the patent Act has been modified; we now face Product Patent protection for pharmaceuticals and agrochemicals in India. While Article 7 & 8 of TRIPS allows for contrary national regulation in the interest of public health, the government of India has not heard or interpreted the TRIPS regulation in this perspective. The rest of the world is not silent and will speak out on February 26, 2005. Consider an extreme example, more than 5 million people in India are living with HIV and 0.5 million of these need immediate anti-retroviral (ARV) treatment. Only 0.44 million people living with HIV in all developing countries currently have access to ARV treatment. This access has been greatly facilitated by the Indian generic pharmaceutical companies bringing down prices of medicines by drastically. Presently, Indian generic manufacturers export generic medicines to over 200 countries. The same is the case with other ailments like cancer, cardiovascular diseases etc. For instance, the anti-cancer drug Gleevec costs $2500 per month while generic version of the same is available at $250 per month in India. An Exclusive Marketing Right (EMR) that has been granted to Novartis A.G., the manufacturer of Gleevec, is already threatening availability of the generic drugs. The Ordinance provides patent protection to agro-chemicals and fertilisers enabling the companies to charge monopoly prices. High costs of pesticides will result in costlier foodgrains and will negatively hit consumers, especially the poor. The Ordinance also brings software under the purview of patent protection furthering the digital divide. Public interest groups and trade unions are holding a mass protest on 26 February 2005 against the Patent (Amendment) Ordinance. Global Coalition against the Indian Patent Amendment believes that India has a duty to place public health concerns and access to medicines for people over the commercial interests of pharmaceutical companies. Public interest groups in India are gravely concerned that the Ordinance will trade away India�s right to protect public health including availability of low-cost, quality generic medicines. In other words, accepting the Ordinance will have the effect of losing even the minimum space available within the TRIPS agreement to protect health. We call upon like-minded groups and individuals all over the world to observe a Global Day of Action (GDA) on 26 February 2005 to demand access to generic drugs in India and elsewhere. In the past, such actions resulted in major victories and forced pharmaceutical companies to drop suits against the South African government (March 2001) and also compelled the US to change its decision to approach the WTO Dispute Settlement Body against Brazil (June 2001). We hope this time too, people�s unity will win over corporate power and force the government of India to replace the Ordinance with the new Bill and to tackle the public health concerns in India and elsewhere. Public interest groups and individuals all over the world are requested to hold protests in the form of rallies, marches and vigils against the Patents Ordinance. Groups can also formally convey their protest to the Indian embassies and consulates. A website is being created to coordinate the activities and facilitate sharing of information on GDA (www.gcaipa.org). The website www.gcaipa.org would be accessible to the public from 0900 hrs GMT on 09.02.2005 In Solidarity Global Coalition against the Indian Patent Amendment (GCAIPA) GCAIPA is an informal network of groups and individuals that are working to ensure access to treatment, food, information, etc. There are many more organisations and individuals behind this campaign and lot more are joining. So the contact list presented below is just to facilitate communication in various regions. Contact Persons : Affordable Medicines and Treatment Campaign (AMTC) C/o Lawyers Collective HIV/AIDS Unit 2nd Floor, 7/10, Botawalla Building, Horniman Circle, Fort, Mumbai 400 023, India Telephone: + 91-22-22630889 Fax: + 91-22-22702563 Email: amtc_india at yahoo.co.in Contact person: K M Gopakumar Mobile: +91 9819140881 National Working Group on Patent Laws A-388, Sarita Vihar, New Delhi-110 044, India Telephone: +91-11-26947403 Fax: +91 �11-26813311 Email: wgkeayla at del6.vsnl.net.in Contact person: B K Keayla Mobile: +91 9811143191 People's Health Movement Secretariat (Global) C/o Community Health Cell, # 367, "Srinivasa Nilaya", Jakkasandra I Main, I Block, Koramangala, Bangalore 560 034, India Telephone: + 91-80-25531518 Fax: + 91-80�25525372 Email: secretariat at phmovement.org Contact person: Prasanna Saligram Mobile: + 91 9845518382 Association For India�s Development and Insaaf International, Maryland, USA Vineeta Gupta Email: guptahr at yahoo.com ------------------------------------------------------------------------ Prasanna AID Bangalore / People's Health Movement Tel: + 91 80 23353459 (R) and + 91 98455 18382(M) ------------------------------------------------------------------------ "It is better to light a candle than complain about the darkness". Join AID India, visit www.aidindia.org. --------------------------------- Do you Yahoo!? Yahoo! Search presents - Jib Jab's 'Second Term' Ask what you can do for India ! ----------------------------------- Association for India's Development Bangalore Chapter. Yahoo! Groups SponsorADVERTISEMENT document.write(''); --------------------------------- Yahoo! Groups Links To visit your group on the web, go to: http://groups.yahoo.com/group/aidbangalore/ To unsubscribe from this group, send an email to: aidbangalore-unsubscribe at yahoogroups.com Your use of Yahoo! Groups is subject to the Yahoo! Terms of Service. ------------------------------------------------------------------------ Prasanna AID Bangalore / People's Health Movement Tel: + 91 80 23353459 (R) and + 91 98455 18382(M) ------------------------------------------------------------------------ "It is better to light a candle than complain about the darkness". Join AID India, visit www.aidindia.org. --------------------------------- Do you Yahoo!? Yahoo! Mail - Easier than ever with enhanced search. Learn more. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050209/56d32df3/attachment.html From prashant at nalsartech.org Wed Feb 9 20:51:29 2005 From: prashant at nalsartech.org (Prashant Iyengar) Date: Wed, 9 Feb 2005 20:51:29 +0530 Subject: [Commons-Law] RIAA Sues Dead People Message-ID: <200502092051.29704.prashant@nalsartech.org> Found this amusing piece at http://www.corante.com/copyfight/ - the "Copyfight" blog. Regards, Prashant February 06, 2005 RIAA Sues Dead People Not at all surprising. In fact, it could even be amusing, since in this case no one but the RIAA has to pay for its mistake: Lawyers representing several record companies have filed suit against an 83 year-old woman who died in December, claiming that she made more than 700 songs available on the internet. "I believe that if music companies are going to set examples they need to do it to appropriate people and not dead people," Robin Chianumba told AP. "I am pretty sure she is not going to leave Greenwood Memorial Park to attend the hearing." Needless to say, this is not the way it usually goes. Most RIAA targets are alive and well, and must deal with the consequences of being sued by a group that has fought in court to make the process quick and painless -- for the RIAA. Due process is, after all, sort of inconvenient. Why not round up all of the people you want to sue in one big, easy-to-bulldoze group? So what if their cases have nothing to do with one another, or the ISP you want information from is a couple states away from a target's jurisdiction? And what's all this nonsense with having to present a court with actual evidence of wrongdoing before you can strip an Internet user of her anonymity? Whatever happened to guilty until proven innocent? In fact, the RIAA doesn't usually meet much resistance to its round-'em-up-and-shoot lawsuits. As this Daily Texan article reports, it can usually skip right to the good part: collecting the settlement fee: It was an ingenious plan: Lawyers would pay around $200 in court fees to subpoena an ISP into revealing the owners of a list of IP addresses the RIAA had accumulated. Before November, the RIAA was able to gather around 50 identities per subpoena. Assuming each person received a letter with a phone number to a similar settlement center, and each person decided to pay a little now instead of a lot later by settling, and each person settled for the then-average $3,000, then for $200 the RIAA could make an easy $150,000. I can count on at least a few Copyfight readers to respond with, "So what? Isn't copyright infringement illegal? Someone has to pay for the damage infringement is doing to the record labels -- why not the people accused of the crime?" ... (Truncated from the orginal piece. You can read it at http://www.corante.com/copyfight/.) From prabhuram at gmail.com Thu Feb 10 19:20:45 2005 From: prabhuram at gmail.com (Ram) Date: Thu, 10 Feb 2005 14:50:45 +0100 Subject: [Commons-Law] Hack License Message-ID: <68752c9f050210055035e87d5d@mail.gmail.com> Hack License By Simson Garfinkel / March 2005 Story Link:http://www.technologyreview.com/articles/05/03/issue/review_hack.asp As cultural critic and New School University professor McKenzie Wark sees things, today's battles over copyrights, trademarks, and patents are simply the next phase in the age-old battle between the productive classes and the ruling classes that strive to turn those producers into subjects. But whereas Marx and Engels saw the battle of capitalist society as being between two social classes—the proletariat and the bourgeoisie—Wark sees one between two newly emergent classes: the hackers and a new group that Wark has added to the lexicon of the academy: the "vectoralist class." Wark's opus A Hacker Manifesto brings together England's Enclosure Movement, Das Kapital, and the corporate ownership of information—a process that Duke University law professor James Boyle called "the Second Enclosure Movement"—to create a unified theory of domination, struggle, and freedom. Hacking is not a product of the computer age, writes Wark, but an ancient rite in which abstractions are created and information is transformed. The very creation of private property was a hack, he argues—a legal hack—and like many other hacks, once this abstraction was created, it was taken over by the ruling class and used as a tool of subjugation. So who are these vectoralists? They are the people who control the vectors by which information flows throughout our society. Information wants to be free, Wark writes, quoting (without attribution) one of the best-known hacker aphorisms. But by blocking the free vectors and charging for use of the others, vectoralists extract value from practically every human endeavor. There is no denying that vectoralist organizations exist: by charging for the distribution of newspapers or Web pages, such organizations collect money whenever we inform ourselves. By charging for the distribution of music, they collect money off the expression of human culture. Yes, today many Web pages and songs can be accessed over the Internet for free. But others cannot be. The essence of the successful vectoralist, writes Wark, is in this person's ability to rework laws and technology so that some vectors can flourish while other vectors—the free ones—are systematically eliminated. But does Wark have it right? By calling his little red book A Hacker Manifesto, Wark hopes to remind us of Marx and Mao. Does this concept of "vector" have what it takes to start a social movement? Are we on the cusp of a Hacker Rebellion? The Communists of the 1840s had more or less settled on the ground rules of their ideology—the communal ownership of property and social payments based on need—by the time Marx and Engels wrote their infamous tract. By contrast, many individuals who identify themselves as hackers today are sure to find Wark's description circumscribed and incomplete. When I was an undergraduate at MIT in the 1980s, hackers were first and foremost people who perpetrated stunts. It was a group of hackers that managed to bury a self-inflating weather balloon near the 50-yard line at the 1982 Harvard–Yale game; two years later, Caltech hackers took over the electronic scoreboard at the Rose Bowl and displayed their own messages. (Another group had hacked the Rose Bowl 21 years before, rewriting the instructions left on 2,232 stadium seats so that Washington fans raising flip-cards for their half-time show unknowingly spelled out "Caltech.") Hackers were also spelunkers of MIT's tunnels, basements, and heating and ventilation systems. These hackers could pick locks, scale walls, and practically climb up moonbeams to reach the roofs of the Institute's tallest buildings. By the late 1980s, the media had seized on the word hacker—not to describe a prankster, but as a person who breaks into computers and takes joyrides on electronics networks. These hackers cracked computer systems, changed school grades, and transferred millions of dollars out of bank accounts before getting caught by the feds and sent to the pen. Finally, there were the kind of hackers MIT professor Joseph Weizenbaum had previously called "compulsive programmers." These gods of software saw the H-word as their badge of honor. Incensed by the hacker stereotype portrayed in the media, these geeky mathlings and compiler-types fought back against this pejorative use of their word—going so far as to write in The New Hacker's Dictionary that the use of "hacker" to describe "malicious meddler" had been "deprecated" (hacker lingo meaning "made obsolete"). I remember interviewing one of these computer scientists in 1989 for the Christian Science Monitor: the researcher threatened to terminate the interview if I used the word "hacker" to describe someone who engaged in criminal activity. Although the researcher and others like him were largely successful in reclaiming their beloved bit of jargon, they were never able to fully disassociate the word from its negative connotations. Today, the word "hacker" is widely accepted to have two meanings. One reason, of course, is that malicious meddlers continue to call themselves hackers. Both Hacking Exposed, a mammoth three-author, 750-page book about to be published in its fifth edition, and Hacking: The Art of Exploitation seem to suggest that use of the word to describe someone with criminal intent is alive and well. There are very much two kinds of hackers: "white-hat hackers," who follow the programmer ethic and help people to secure their computers, and "black-hat hackers," who actually do the dirty business. The fact that it is the black hats who create the market demand for the white hats is something that most white hats fail to mention. Also overlooked is the fact that many who wear white hats today once wore black hats in their distant or not-so-distant past. The idealized hackers for whom Wark has written his manifesto also routinely engage in criminal activity—by violating the vectorial establishment's laws of intellectual property. Vectorialists are not the only victims of these crimes. And Wark's hackers are the kind of people who would use peer-to-peer networks to let a million of their closest friends download Hollywood's latest movies before they are released in theaters—a prime example of hacker power to defeat the evils of vectorial oppression. On the other hand, hackers also rent time on other networks in order to send out billions of spam messages hawking the latest in penis enlargement. When it comes to the hacker pastime of criminal computer trespass, Wark is silent. Freedom versus Free Beer Absent as well is any reference to hardware hacking—or, indeed, any reference to hardware at all. To Wark, hacking is about bits, not atoms. The power of Big Vector is its ability to control information networks like the telegraph and the Internet, not transportation networks like FedEx. The intellectual property that Wark is concerned about is the property of abstraction: movies, programs, drugs. It's information that "wants to be free." Wark comes down pretty hard on the patenting of genetic information, but presumably the patents that apply to the design of piston engines or wind turbines are another matter entirely. Hacker philosophers such as Richard Stallman and Lawrence Lessig frequently play up the fact that information can be given away without being relinquished. It is this fundamental fact that makes information different from other goods, they argue. It is why the old rules of property should not apply in the digital domain. Stallman wrote in 1985, "the golden rule requires that if I like a program I must share it with other people who like it." Stallman continues, "Software sellers want to divide the users and conquer them, making each user agree not to share with others. I refuse to break solidarity with other users in this way. I cannot in good conscience sign a nondisclosure agreement or a software license agreement." Stallman, more than anyone else, is rightfully credited with kicking off what we now know as the "open source movement"—which he calls "Free Software." That's "free" as in "freedom," not as in "free beer," Stallman is quick to point out. The culture of sharing software was in danger of dying out in the early 1980s when Stallman started the GNU Project and wrote "The GNU Manifesto." GNU stands for GNU's Not Unix—an all too clever recursive hacker acronym. The original goal of the project was to create a free version of the Unix operating system. But Stallman worked hard to extend the consciousness of programmers beyond mere lines of code and into the world of politics—specifically the politics of intellectual property. He staged a hacker protest at the headquarters of Lotus when that company tried to enforce copyright restrictions on user interfaces. He wrote and spoke, rallying against copyright restrictions and software patents. Like "the Party" in 1984 and real-live Communists in China, Stallman promotes his ideology in part by rewriting everyday speech. He went so far as to publish an official list of "Confusing or Loaded Words and Phrases that are Worth Avoiding"— words like "commercial," "consumer," "content," "creator," "open," and "intellectual property." For example, he writes, instead of using the phrase "copyright protection," one should instead use "copyright restrictions," as in the sentence: "Congress recently extended the term of copyright restrictions by 20 years." These tactics turned off supporters and were put to good use as counterpropaganda by his detractors—such as a software executive who once accused Stallman of being a Communist because of his collectivist software ideology. The emergence of the term "open source" amounted to a slap in Stallman's face: after all, it was a direct attempt to separate the mechanism of Free Software from Stallman's barefoot politics of free love, his vehement attacks on the beliefs and conduct of the Republican party, and his vigorous defense of personal freedom. Using Wark's framework, this all makes a kind of sense. Stallman is not opposed to big business and capitalism: he is opposed to big vector and the vectoralist agenda of creating a body of intellectual property law that eliminates the possibility of alternatives. Anyone committed to freedom must be opposed to the vectoralist class, because it profits through control. >From this Wark-Stallman view that intellectual property is really just a self-enriching tool evolves the conclusion that the world of computers would be better off without the majority of patents, copyrights, trademarks, and other legal means for restricting intellectual property. Lessig, meanwhile, takes these mechanisms of restriction in a different direction. In The Future of Ideas he argues that a combination of legal and technical restrictions are fencing off our cultural heritage. In the not-so-distant future, perhaps, the very phrase "free expression" will become an oxymoron, as any self-respecting expression will necessarily have to pay licensing fees for numerous ideas, phrases, images, and even thoughts from well-funded copyright holders. Lessig failed in his attempt to fight the Sonny Bono Copyright Term Extension Act in the U.S. Supreme Court—the act that will keep Mickey Mouse out of the public domain for another 20 years. But despite this serious setback, Lessig has succeeded in convincing thousands of professionals to put their signatures on his so-called "Creative Commons" licenses, which allow colleagues and other professionals to freely cite from and reprint one another's work, and even make derivative works. Hardware Hacks The problem here is that sharing may work for software, but it doesn't work for hardware. Moore's Law has driven much of the computer revolution, but it requires that companies like Intel spend more and more money each year to create the next generation of superfast chips. Take away Intel's copyright and patent protection, and knock-off companies would create clone Intel processors for a fraction of the cost. These chips would be dramatically cheaper than Intel's, and Intel would not have the money to create the next generation of still-faster devices. Moore's Law depends upon vectoral control. Wark's opus doesn't just ignore hardware—it ignores hardware hacking, the tradition of modifying circuits and computers to do things that the original designers never intended. Hardware hackers are pros at both adding new features and removing arbitrary restrictions—like the region codes on DVD players that won't let European DVDs play in U.S. players. Yet increasingly, hardware is where the action is. Books such as Hacking the Xbox: An Introduction to Reverse Engineering are exposing secrets to the masses that once were strictly the province of MIT and Caltech midnight seminars. Hardware hackers are largely motivated by exactly the same antivectoralist tendencies as the hackers creating file-sharing networks: the desire to get around restrictions that have been artificially imposed upon their beloved technology. Hackers are people who use technical means to break restrictive rules and, as a result, create new possibilities. They are agents of disruptive change, no matter whether they hack code, networks, video-game consoles or copyright. By failing to address hardware and its hackers, Wark's work once again falls short of its title. And what of information yearning to be free? The quotation comes from Stewart Brand, editor of the Whole Earth Catalog, speaking at the first Hacker's Conference back in 1984. According to a transcript of the conference printed in Brand's May 1985 issue, the full quotation was: "On the one hand information wants to be expensive, because it's so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other." If I might be so bold as to reëngineer Brand's quotation while looking through Wark's glasses, it's the hackers who want information to be free, and it's the vectoralists who want information to be expensive. Having known and admired Stallman for more than 20 years, I've long understood the concept of the hacker. Wark's contribution in his misnamed volume is the identification of the hacker's enemy, the vectoral class. It is a battle, I fear, that we cannot win. But it is one that must be fought. Simson Garfinkel is a researcher in the field of computer security. He is the author of Database Nation: The Death of Privacy in the 21st Century (2000). He is currently a doctoral candidate at MIT's Computer Science and Artificial Intelligence Laboratory. From keith at thememorybank.co.uk Fri Feb 11 04:07:02 2005 From: keith at thememorybank.co.uk (Keith Hart) Date: Thu, 10 Feb 2005 23:37:02 +0100 Subject: [Commons-Law] Hack License In-Reply-To: <68752c9f050210055035e87d5d@mail.gmail.com> References: <68752c9f050210055035e87d5d@mail.gmail.com> Message-ID: <420BE20E.4060001@thememorybank.co.uk> Ram, Thanks for distributing this article which treats Ken Wark seriously, but puts him in his place as just another New York cultural critic. Reading it reminded me of the anti-hero of my favourite novel, Dostoevsky's Crime and Punishment. Since I was 17 I have had to live with the knowledge that the character in fiction I most identify with, Raskolnikov, murdered an old lady for her money just to see if he could get away with it. His nemesis is a clever police detective called Porphyry, a bit like Sreenivasan in the 2002 Bollywood movie, Company. Most of the novel is a cat-and-mouse game between the two of them in which Porphyry tries to crack Raskolnikov into making a confession. This not a whodunnit, since we all, including these two, know who did it. The key scene is one where Porphyry let's his opponent know that he's been doing some research and has read an article R. published in a student magazine somewhere. he quotes a line that has been burnt on my brain eversince I first read it. "Anyone who would do something new must be a criminal". Porphyry asks him if he still beleives that. From then on Raskolnikov is on the back foot and, of course, he eventually cracks. Who wouldn't, with that burden of guilt? But I knew instinctively what made this guy tick. He was on th eloose, between the cracks of society. he was intelligent and he knew the rules didn't work for people like him. So why not break a few to find out what happened? I felt the same, since when, maybe two? I understood instinctively that my mother's rules for eating at table would keep me stuck where I didn't want to be for the rest of my life. So I broke them. My most famous contribution to learning is that I invented th eexpression, 'the informal economy'. Work it out. What gets me about the Lessig tendency and all the earnest discussion about licences is that it's playing by their rules in the name of doing something different. Don't people understand that we are up against characters who make the 19th century railroad barons and J.D. Rockefeller himself look like amateurs? Enough of this. But, as far as I am concerned, the word hacker had better retain its criminal meaning or we are all lost. Keith From aashish.thomas.john at gmail.com Fri Feb 11 20:16:04 2005 From: aashish.thomas.john at gmail.com (Thomas John) Date: Fri, 11 Feb 2005 20:16:04 +0530 Subject: [Commons-Law] question on trade secrets Message-ID: <9f871321050211064617af6952@mail.gmail.com> This is a frustratingly simple-sounding IPR question that I desperately need an answer to but I can't seem to figure it out. Can anyone help me out on this? Thomas. ====== Hypothetical situation: X discovers a manufacturing process which he does not patent. The process is known only to him and remains a trade secret. He seeks to sell the know-how for this process to Y. 1) Does X have a right or interest in the process, although it was not patented? 2) Is there a right in rem against others using this process? 3) Most importantly, does X have TITLE to the trade secret? ====== From sunita_sreedharan at hotmail.com Sun Feb 13 11:40:55 2005 From: sunita_sreedharan at hotmail.com (Sunita Sreedharan) Date: Sun, 13 Feb 2005 11:40:55 +0530 Subject: [Commons-Law] RE: commons-law Digest, Vol 19, Issue 13 In-Reply-To: <20050212110007.DACE428E348@mail.sarai.net> Message-ID: Dear Thomas, On the premise that we are speaking of this situation in India, please note that trade secret is protected under common law. Now for your questions: 1. X has a right/interest in the process even if it is not patented; provided the said process is not already in public domain and X has not published the process for common consumption by way of seminar, article etc 2. Yes, but in so far has X has taken due care to see that the process is kept a secret 3. Yes, X has a title to it, if he can prove that he had taken due care to protect his trade secret; the said trade secret is not common knowledge or obvious to a person with reasonable skill; and that the said trade secret gives him competitive edge in the market. A good example is of course Coca Cola formula Signing off Sunita K. Sreedharan Hypothetical situation: X discovers a manufacturing process which he does not patent. The process is known only to him and remains a trade secret. He seeks to sell the know-how for this process to Y. 1) Does X have a right or interest in the process, although it was not patented? 2) Is there a right in rem against others using this process? 3) Most importantly, does X have TITLE to the trade secret? From: commons-law-request at sarai.net Reply-To: commons-law at sarai.net To: commons-law at sarai.net Subject: commons-law Digest, Vol 19, Issue 13 Date: Sat, 12 Feb 2005 12:00:07 +0100 (CET) Send commons-law mailing list submissions to commons-law at sarai.net To subscribe or unsubscribe via the World Wide Web, visit https://mail.sarai.net/mailman/listinfo/commons-law or, via email, send a message with subject or body 'help' to commons-law-request at sarai.net You can reach the person managing the list at commons-law-owner at sarai.net When replying, please edit your Subject line so it is more specific than "Re: Contents of commons-law digest..." Today's Topics: 1. question on trade secrets (Thomas John) ---------------------------------------------------------------------- Message: 1 Date: Fri, 11 Feb 2005 20:16:04 +0530 From: Thomas John Subject: [Commons-Law] question on trade secrets To: commons-law at sarai.net Message-ID: <9f871321050211064617af6952 at mail.gmail.com> Content-Type: text/plain; charset="US-ASCII" This is a frustratingly simple-sounding IPR question that I desperately need an answer to but I can't seem to figure it out. Can anyone help me out on this? Thomas. ====== Hypothetical situation: X discovers a manufacturing process which he does not patent. The process is known only to him and remains a trade secret. He seeks to sell the know-how for this process to Y. 1) Does X have a right or interest in the process, although it was not patented? 2) Is there a right in rem against others using this process? 3) Most importantly, does X have TITLE to the trade secret? ====== ------------------------------ _______________________________________________ commons-law mailing list commons-law at sarai.net https://mail.sarai.net/mailman/listinfo/commons-law End of commons-law Digest, Vol 19, Issue 13 ******************************************* _________________________________________________________________ Manage information better. Optimise your tasks. http://www.microsoft.com/india/office/experience/ Experience MS Office System. From sudhir at circuit.sarai.net Sun Feb 13 21:52:04 2005 From: sudhir at circuit.sarai.net (sudhir at circuit.sarai.net) Date: Sun, 13 Feb 2005 17:22:04 +0100 Subject: [Commons-Law] RE: commons-law Digest, Vol 19, Issue 13 In-Reply-To: References: Message-ID: <3df77f3d0a5679b6ac341ef40c57157a@sarai.net> Dear Thomas The question was posed in terms of broad principle and I will reply in the same tenor - in this area of IP law, more than many others, the factual circumstances can have a huge impact. I want to supplemnet Sunita's observations on all three points... so here it goes. 1. For something to be protected as confidential information it must satisfy a few key criterion: it must be specific, non trivial information that is not already in the public domain.[1999 FSR 235] This enquiry is analogous to establishing that something is a copyright work - except that the principles of law here are common law based. When these conditions are satisfied then X may be said to have an 'interest' in the information. 2. The law of confidence generates obligations through the law of contract as well as through trust like fiduciary relationships. Both of these are in personam rights and NO in rem rights are involved. So in your example much would turn on the circumstances in which X passes on the information to Y. 3. Legally one has TITLE only to property - it does sound odd to say that one has TITLE to one's reputation - a personal interest protected by the common law. Hope that helps Sudhir On February 13, 7:10 am "Sunita Sreedharan" wrote: > Dear Thomas, > > On the premise that we are speaking of this situation in India, > please note that trade secret is protected under common law. Now for > your questions: > 1. X has a right/interest in the process even if it is not patented; > provided the said process is not already in public domain and X has > not published the process for common consumption by way of seminar, > article etc > 2. Yes, but in so far has X has taken due care to see that the > process is kept a secret > > 3. Yes, X has a title to it, if he can prove that he had taken due > care to protect his trade secret; the said trade secret is not common > knowledge or obvious to a person with reasonable skill; and that the > said trade secret gives him competitive edge in the market. > > A good example is of course Coca Cola formula > > Signing off > > Sunita K. Sreedharan > > Hypothetical situation: > X discovers a manufacturing process which he does not patent. The > process is known only to him and remains a trade secret. He seeks to > sell the know-how for this process to Y. > > > 1) Does X have a right or interest in the process, although it was not > patented? > 2) Is there a right in rem against others using this process? > 3) Most importantly, does X have TITLE to the trade secret? > > > From: commons-law-request at sarai.net > Reply-To: commons-law at sarai.net > To: commons-law at sarai.net > Subject: commons-law Digest, Vol 19, Issue 13 > Date: Sat, 12 Feb 2005 12:00:07 +0100 (CET) > > Send commons-law mailing list submissions to > commons-law at sarai.net > > To subscribe or unsubscribe via the World Wide Web, visit > https://mail.sarai.net/mailman/listinfo/commons-law > or, via email, send a message with subject or body 'help' to > commons-law-request at sarai.net > > You can reach the person managing the list at > commons-law-owner at sarai.net > > When replying, please edit your Subject line so it is more specific > than "Re: Contents of commons-law digest..." > > > Today's Topics: > > 1. question on trade secrets (Thomas John) > > > ---------------------------------------------------------------------- > > Message: 1 > Date: Fri, 11 Feb 2005 20:16:04 +0530 > From: Thomas John > Subject: [Commons-Law] question on trade secrets > To: commons-law at sarai.net > Message-ID: <9f871321050211064617af6952 at mail.gmail.com> > Content-Type: text/plain; charset="US-ASCII" > > This is a frustratingly simple-sounding IPR question that I > desperately need an answer to but I can't seem to figure it out. Can > anyone help me out on this? > > Thomas. > > > ====== > > > Hypothetical situation: > X discovers a manufacturing process which he does not patent. The > process is known only to him and remains a trade secret. He seeks to > sell the know-how for this process to Y. > > > 1) Does X have a right or interest in the process, although it was not > patented? > 2) Is there a right in rem against others using this process? > 3) Most importantly, does X have TITLE to the trade secret? > > > ====== > > > ------------------------------ > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > > > End of commons-law Digest, Vol 19, Issue 13 > ******************************************* > > _________________________________________________________________ > Manage information better. Optimise your tasks. > http://www.microsoft.com/india/office/experience/ Experience MS > Office System. > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > From rahul.matthan at trilegal.com Mon Feb 14 10:15:19 2005 From: rahul.matthan at trilegal.com (Rahul Matthan) Date: Mon, 14 Feb 2005 10:15:19 +0530 Subject: [Commons-Law] RE: commons-law Digest, Vol 19, Issue 13 In-Reply-To: <3df77f3d0a5679b6ac341ef40c57157a@sarai.net> References: <3df77f3d0a5679b6ac341ef40c57157a@sarai.net> Message-ID: <42102CDF.5040704@trilegal.com> I'd be interested to know - since we are discussing this in the Indian context, whether anyone knows of any trade secret cases in India. While there may be a common law interest and perhaps even a right, I would be reluctant to come to the conclusion that there was title. Title must be created by operation of law and where the basis of the right in the trade secret is the very fact that it is being kept secret, it is difficult to state that title has been established on the basis of the secrecy. Taking the argument further, title in property can be declared with no fear that it might be lost. However, the very nature of a trade secret is that when it is disclosed to the public the owner of the trade secret immediately loses not only the "title" but also any right and interest that he had in the secret. The only right that remains is the right under contract to proceed against the person who disclosed the secret - and that is a right in personam. Various states in the US have enacted trade secret legislation conferring title on such secrets. In those cases the owner of the secret is granted title under law and then assumes a right in rem in respect of the secret. No such legislation exists in India. I would find it hard to treat the owner of a trade secret as holding title over the secret regardless of the facts of the particular case. Rahul -- Rahul Matthan Partner Trilegal Tel : +91-80-2353-6319 +91-80-2353-7032 Fax : +91-80-2363-3694 CONFIDENTIALITY NOTE The contents of this message may be legally privileged and confidential, for the use of the intended recipient(s) only. It should not be read, copied and used by anyone other than the intended recipient. If you have received this message in error,please immediately notify us at the above co-ordinates, preserve its confidentiality and delete it from your system. Thank you. sudhir at circuit.sarai.net wrote: >Dear Thomas > >The question was posed in terms of broad principle and I will reply in the >same tenor - in this area of IP law, more than many others, the factual >circumstances can have a huge impact. I want to supplemnet Sunita's >observations on all three points... so here it goes. > >1. For something to be protected as confidential information it must >satisfy a few key criterion: it must be specific, non trivial information >that is not already in the public domain.[1999 FSR 235] This enquiry is >analogous to establishing that something is a copyright work - except that >the principles of law here are common law based. When these conditions are >satisfied then X may be said to have an 'interest' in the information. > >2. The law of confidence generates obligations through the law of contract >as well as through trust like fiduciary relationships. Both of these are in >personam rights and NO in rem rights are involved. So in your example much >would turn on the circumstances in which X passes on the information to Y. > >3. Legally one has TITLE only to property - it does sound odd to say that >one has TITLE to one's reputation - a personal interest protected by the >common law. > >Hope that helps >Sudhir > > >On February 13, 7:10 am "Sunita Sreedharan" >wrote: > > >>Dear Thomas, >> >>On the premise that we are speaking of this situation in India, >>please note that trade secret is protected under common law. Now for >>your questions: >>1. X has a right/interest in the process even if it is not patented; >>provided the said process is not already in public domain and X has >>not published the process for common consumption by way of seminar, >>article etc >>2. Yes, but in so far has X has taken due care to see that the >>process is kept a secret >> >>3. Yes, X has a title to it, if he can prove that he had taken due >>care to protect his trade secret; the said trade secret is not common >>knowledge or obvious to a person with reasonable skill; and that the >>said trade secret gives him competitive edge in the market. >> >>A good example is of course Coca Cola formula >> >>Signing off >> >>Sunita K. Sreedharan >> >>Hypothetical situation: >>X discovers a manufacturing process which he does not patent. The >>process is known only to him and remains a trade secret. He seeks to >>sell the know-how for this process to Y. >> >> >>1) Does X have a right or interest in the process, although it was not >>patented? >>2) Is there a right in rem against others using this process? >>3) Most importantly, does X have TITLE to the trade secret? >> >> >>From: commons-law-request at sarai.net >>Reply-To: commons-law at sarai.net >>To: commons-law at sarai.net >>Subject: commons-law Digest, Vol 19, Issue 13 >>Date: Sat, 12 Feb 2005 12:00:07 +0100 (CET) >> >>Send commons-law mailing list submissions to >> commons-law at sarai.net >> >>To subscribe or unsubscribe via the World Wide Web, visit >> https://mail.sarai.net/mailman/listinfo/commons-law >>or, via email, send a message with subject or body 'help' to >> commons-law-request at sarai.net >> >>You can reach the person managing the list at >> commons-law-owner at sarai.net >> >>When replying, please edit your Subject line so it is more specific >>than "Re: Contents of commons-law digest..." >> >> >>Today's Topics: >> >> 1. question on trade secrets (Thomas John) >> >> >>---------------------------------------------------------------------- >> >>Message: 1 >>Date: Fri, 11 Feb 2005 20:16:04 +0530 >>From: Thomas John >>Subject: [Commons-Law] question on trade secrets >>To: commons-law at sarai.net >>Message-ID: <9f871321050211064617af6952 at mail.gmail.com> >>Content-Type: text/plain; charset="US-ASCII" >> >>This is a frustratingly simple-sounding IPR question that I >>desperately need an answer to but I can't seem to figure it out. Can >>anyone help me out on this? >> >>Thomas. >> >> >>====== >> >> >>Hypothetical situation: >>X discovers a manufacturing process which he does not patent. The >>process is known only to him and remains a trade secret. He seeks to >>sell the know-how for this process to Y. >> >> >>1) Does X have a right or interest in the process, although it was not >>patented? >>2) Is there a right in rem against others using this process? >>3) Most importantly, does X have TITLE to the trade secret? >> >> >>====== >> >> >>------------------------------ >> >>_______________________________________________ >>commons-law mailing list >>commons-law at sarai.net >>https://mail.sarai.net/mailman/listinfo/commons-law >> >> >>End of commons-law Digest, Vol 19, Issue 13 >>******************************************* >> >>_________________________________________________________________ >>Manage information better. Optimise your tasks. >>http://www.microsoft.com/india/office/experience/ Experience MS >>Office System. >> >>_______________________________________________ >>commons-law mailing list >>commons-law at sarai.net >>https://mail.sarai.net/mailman/listinfo/commons-law >> >> >> > >_______________________________________________ >commons-law mailing list >commons-law at sarai.net >https://mail.sarai.net/mailman/listinfo/commons-law > > > From law at yangworld.com Mon Feb 14 11:19:18 2005 From: law at yangworld.com (Corporate Legal Desk) Date: Mon, 14 Feb 2005 11:19:18 +0530 Subject: [Commons-Law] RE: commons-law Digest, Vol 19, Issue 13 In-Reply-To: References: <20050212110007.DACE428E348@mail.sarai.net> Message-ID: <6.1.2.0.2.20050214111703.02cb4610@mail.yangworld.com> At 11:40 AM 2/13/2005, Sunita Sreedharan wrote: >Dear Thomas, > >A good example is of course Coca Cola formula great example. but now the law is demanding that they print the ingredients (and proportion if I remember through my senile cobwebs) on the bottle. In my experience, law and legislation (these aren't to be read as synonyms) tread variegated paths. : yen-thaw From law at yangworld.com Mon Feb 14 11:26:04 2005 From: law at yangworld.com (Corporate Legal Desk) Date: Mon, 14 Feb 2005 11:26:04 +0530 Subject: [Commons-Law] question on trade secrets Message-ID: <6.1.2.0.2.20050214112539.02c7b4e0@mail.vsnl.com> ---------- - YANG l a w y e r s I will try ... At 08:16 PM 2/11/2005, you wrote: >This is a frustratingly simple-sounding IPR question that I >desperately need an answer to but I can't seem to figure it out. Can >anyone help me out on this? > >Thomas. > > >====== > > >Hypothetical situation: >X discovers a manufacturing process which he does not patent. The >process is known only to him and remains a trade secret. He seeks to >sell the know-how for this process to Y. Trade secret is is not so easy to accomplish as it requires lots of control (which is normally achieved through transactional means). Sale is easy but that depends upon the complete transaction being through. >1) Does X have a right or interest in the process, although it was not >patented? An indirect means of protection is availed by many under the copyright act by many (three dimensional rendition of two dimensional representations). Then you always have the option of proving it is actually yours by the three criteria of time, effort and expense. Establishing this is easier said than done, but worth the effort if you do not have explicit right. >2) Is there a right in rem against others using this process? That is asking if I can exercise my rights without having proof of it. Shooting from the hip, I daresay that a non-legal solution would be to publish a newspaper notice and then wait for the barrage of reactions to follow, but then again, if you are the gambling sorts, no one responds (or you are able to overcome the response), you can always show the effort you are going through. >3) Most importantly, does X have TITLE to the trade secret? This should be answered in the foregoing. There are many other esoteric and creative means of protecting one's IP rights (though many IP lawyers may deny or argue these means). HTH. rgds, :yang yen-thaw STRICTLY CONFIDENTIAL - SUBJECT TO CLIENT-ATTORNEY PRIVILEGE This email transmission, its attachments and any information contained herein are strictly confidential and privileged. If you are not the intended recipient, please destroy the documents in your possession and notify us immediately. Do not copy, forward or use it for any purpose nor disclose the contents to any person. Corporate laws, international business transactions, infrastructure and intellectual property Delhi contact: Telephone: +91-11-26533752/53 +91-11-51664950 Facsimile: +91-11-26863103 Bangalore contact: Telephone: +91-80-25571781 Facsimile: +91-80-25571782 Email: law at yangworld.com I N D I A + Main Office - New Delhi + Other Offices - Bangalore Public PGP Key - B4C5 5430 9C28 13D8 78CA 4D5B 2CC7 57E7 D7E4 415D security policy - http://www.yangworld.com/ -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050214/108fec95/attachment.html From law at yangworld.com Mon Feb 14 11:33:05 2005 From: law at yangworld.com (Corporate Legal Desk) Date: Mon, 14 Feb 2005 11:33:05 +0530 Subject: [Commons-Law] question on trade secrets In-Reply-To: <6.1.2.0.2.20050214112539.02c7b4e0@mail.vsnl.com> References: <6.1.2.0.2.20050214112539.02c7b4e0@mail.vsnl.com> Message-ID: <6.1.2.0.2.20050214113120.02c8b1b0@mail.yangworld.com> Oops, sorry, first of all, it wasn't meant to be on letter head, second of all, standard appended qualifiers and caveats accompanying emails should not have been reflected on this august list - or any others for that matter! :Yen-Thaw At 11:26 AM 2/14/2005, Corporate Legal Desk wrote: > >---------- >- >YANG >l a w y e r s > > >I will try ... > >At 08:16 PM 2/11/2005, you wrote: >>This is a frustratingly simple-sounding IPR question that I >>desperately need an answer to but I can't seem to figure it out. Can >>anyone help me out on this? >> >>Thomas. >> >> >>====== >> >> >>Hypothetical situation: >>X discovers a manufacturing process which he does not patent. The >>process is known only to him and remains a trade secret. He seeks to >>sell the know-how for this process to Y. > >Trade secret is is not so easy to accomplish as it requires lots of >control (which is normally achieved through transactional means). Sale is >easy but that depends upon the complete transaction being through. > >>1) Does X have a right or interest in the process, although it was not >>patented? > >An indirect means of protection is availed by many under the copyright act >by many (three dimensional rendition of two dimensional >representations). Then you always have the option of proving it is >actually yours by the three criteria of time, effort and >expense. Establishing this is easier said than done, but worth the effort >if you do not have explicit right. > >>2) Is there a right in rem against others using this process? > >That is asking if I can exercise my rights without having proof of >it. Shooting from the hip, I daresay that a non-legal solution would be >to publish a newspaper notice and then wait for the barrage of reactions >to follow, but then again, if you are the gambling sorts, no one responds >(or you are able to overcome the response), you can always show the effort >you are going through. > >>3) Most importantly, does X have TITLE to the trade secret? > >This should be answered in the foregoing. There are many other esoteric >and creative means of protecting one's IP rights (though many IP lawyers >may deny or argue these means). > >HTH. > >rgds, >:yang yen-thaw > > >STRICTLY CONFIDENTIAL - SUBJECT TO CLIENT-ATTORNEY PRIVILEGE > >This email transmission, its attachments and any information contained >herein are strictly confidential and privileged. If you are not the >intended recipient, please destroy the documents in your possession and >notify us immediately. Do not copy, forward or use it for any purpose nor >disclose the contents to any person. > > > >Corporate laws, international business transactions, infrastructure and >intellectual property >Delhi contact: Telephone: +91-11-26533752/53 +91-11-51664950 Facsimile: >+91-11-26863103 >Bangalore contact: Telephone: +91-80-25571781 Facsimile: +91-80-25571782 >Email: law at yangworld.com >I N D I A >+ Main Office - New Delhi + Other Offices - Bangalore > >Public PGP Key - B4C5 5430 9C28 13D8 78CA 4D5B 2CC7 57E7 D7E4 415D >security policy - http://www.yangworld.com/ >_______________________________________________ >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/20050214/bce26ef1/attachment.html From aashish.thomas.john at gmail.com Mon Feb 14 12:03:07 2005 From: aashish.thomas.john at gmail.com (Thomas John) Date: Mon, 14 Feb 2005 12:03:07 +0530 Subject: [Commons-Law] RE: commons-law Digest, Vol 19, Issue 13 In-Reply-To: References: <20050212110007.DACE428E348@mail.sarai.net> Message-ID: <9f87132105021322337820ea88@mail.gmail.com> Is there a specific common law case that lays down the tests of due care, common knowledge and competitive edge with regard to title to trade secrets? One view on title to trade secrets seems to be that, since they are intellectual property, one can have title to them, but this seems problematic in the absence of any statutory backing in India. Given the absence of Supreme Court judgements on this area, such a case would be tremendously useful in clarifying the law on the point if a case of this nature comes before the courts. I would think, however, that automatic title would be problematic if two individuals were to independently discover or invent similar processes. Does anyone know how High Courts in India have reacted to the idea of extra-contractual rights in trade secrets, or if they have at all? Thomas. From rakesh at sarai.net Tue Feb 15 17:15:00 2005 From: rakesh at sarai.net (Rakesh) Date: Tue, 15 Feb 2005 17:15:00 +0530 Subject: [Commons-Law] call for contribution in medianagar 02 Message-ID: <4211E0BC.3060908@sarai.net> *Medianagar 02 : Call for Contributions* Medianagar is a Hindi publication of the Publics and Practices in the History of the Present (PPHP) project in Sarai-CSDS. It presents research notes and narratives from the ongoing PPHP research centred on the city and media. The attempt is to study media in its rapidly changing forms, practices and modes of expression in the context of urban life – markets, factories, courts, archives, etc; and to follow the histories of the cinema, television, internet, newspapers and other media forms and technologies and technological experiences. The research involves traversing zones of legality and illegality, passing through markets, cinemas, corporate offices, music companies, film distribution offices, cable network people, detective agencies, law courts, police stations, government archives and factories. We meet shopkeepers, software copiers porn merchants, architects, singers, accountants, labourers, lawyers, officials, policemen: all of whom constitute the fraught fabric of the Media City, the intertwining networks of curtailment and circulation. Medianagar is a form through which we express our findings, sometimes as raw material and sometimes as finished texts. The idea behind bringing out Medianagar in Hindi is to create a kind of interface with Hindi-speaking people and provide materials to the researchers who are primarily working in Hindi. It is also a good medium for the researchers to continue their interaction in the field. The first edition of Medianagar was published in January 2004. It contained materials on “Film and the City”, “Perspectives on the Media and City”, “Emerging Trends in Cinema”, “The Transformation of a Resettlement Colony into a Market”, “Labor in Media Market”, “The Contradictions of CAS”, “A Brief History of the Cable TV Network in India”, “Copyright Culture in Delhi”, “A Researcher's Experience in the MCD”, “Registered Societies”, “The Archival Image of a City”, etc. We received a very good response from researchers and independent individuals, especially from the Hindi-speaking areas. Now we are trying to conceptualise the next issue. We invite all those who are working on/around the above-mentioned themes to contribute articles, memoirs, diaries, notes, images (or any other forms you find interesting) for Medianagar 02. Please keep in mind the following suggestions: 1.Texts should be neatly typed in Hindi and not more than 5000 words. 2.If writing in Hindi is a problem, Medianagar can get texts translated into Hindi if submitted early enough. 3.Submission can be in the form of hard or soft copies. The last date for submission is 31 March 2005. Please keep a copy of your article as submissions will not be returned. Submissions should be addressed to: Contribution for Medianagar 02 Sarai/CSDS, 29, Rajpur Road, Delhi 110054 For queries contact: rakesh at sarai.net -- Rakesh Kumar Singh Sarai-CSDS Rajpur Road, Delhi 110054 Ph: 91 11 23960040 Fax: 91 11 2394 3450 web site: www.sarai.net web blog: http://blog.sarai.net/users/rakesh/ From prabhuram at gmail.com Tue Feb 15 16:12:37 2005 From: prabhuram at gmail.com (Ram) Date: Tue, 15 Feb 2005 11:42:37 +0100 Subject: [Commons-Law] =?iso-8859-1?q?Amir_Attaran_on_India=B4s_Deadly_Li?= =?iso-8859-1?q?es?= Message-ID: <68752c9f05021502426c759e7f@mail.gmail.com> India's Deadly Lies By Amir Attaran and Roger Bate source: Tech Central Station The World Trade Organization has long faced angry accusations that its patent rules deny patients in poor countries life-saving medicines by making them too expensive. But starting three years ago, two academic studies -- one in the Journal of the American Medical Association and the other in Health Affairs -- expressed doubts at the magnitude of the problem. Both argued that most of the medicines that WHO terms "essential" in developing countries are no longer patented -- fully 98% of them are off patent. As a result, efforts to assail and reform patent law would only affect health on the margins. Far more alarming, from a public health perspective, was the stingy government financing earmarked for population health (worldwide, no more than $200 million for malaria in 2003; a bit more for AIDS, less for tuberculosis), and the careless expenditure of foreign aid money on medically useless interventions, or on certain developing countries with a long record of treating their poor and sick citizens with contempt. The evidence, collated by one of us (Attaran), proved as much, and had to be reckoned with. Despite the overwhelming evidence that patents aren't an obstacle to essential medicines, India led a phalanx of developing countries and antiglobalization NGOs intent on doing away with the WTO's patent rules for medicines. They pushed so aggressively that at the WTO summit in Cancun in 2003, their interventions nearly scuppered the Doha Round of trade discussions and the future of the entire WTO. Only after a series of face-saving but ineffective compromises did India relent, and four days shy of a January 2005 deadline, it introduced pharmaceutical patenting. But while India has been vacillating over patents, its health systems are crumbling, making it patently obvious that its government cares not a jot for its people. A prime example of its lack of attention to healthcare is that by some estimates it may have more HIV positive people (over 5 million) than any other nation, including South Africa. But most amazing is this: the same Indian government that for years held the WTO to ransom never itself believed that medicine patents were a problem. Speaking at a medical conference in Bangalore two weeks ago, Indian Health Minister Anbumani Ramadoss confessed that "there is no need for any apprehension" over patents driving up the price of essential medicines in India, since 90 percent of them are not patented. The health minister's rounding errors aside, this is basically the right answer, and Mr. Ramadoss is correctly, if belatedly, concluding that India will be only slightly affected by medicine patents. But where was India's acknowledgement of that fact as recently as 2004, when it was leading the anti-patent voices at the WTO? At that time, India justified its tergiversation by insisting that it was concerned for its citizens' health. How very untrue. At the same conference in Bangalore, Indian Finance Minister Palaniappan Chidambaram explained why his fellow citizens are among the most diseased in the world. Calling his own government's efforts "inadequate for [the] health sector", he unveiled figures showing that India spends 4.5% of its GDP on health, of which only 0.9% is public expenditure. No government in South Asia spends less, making New Delhi dead last (tragic pun intended) in providing for its citizens' health. What's more, India stalled forward progress on trade liberalization at a time when other poor countries desperately required the benefits it would bring. India sold out Africa, one could say. Far from being actuated by health concerns, in hindsight India's cynical diplomacy seems motivated by a desire that disputes over patents not interfere with India's now burgeoning pharmaceutical export trade ($460 million to the USA last year). Meanwhile, seen from a slowly-propelled bicycle, the health of poor Indian villagers is shockingly worse than in much of Africa. Few medicines, whether patented or not, are available in public hospitals, principally because the government does not care to provide them. We are haunted by the sight of a man, crossing the road, dragging behind him a leg made lame and elephantine by lymphatic filariasis -- a disease for which Western pharmaceutical firms offer the medicines not just cheaply, but for free, if only the elites and Brahmins officiating in New Delhi cared to distribute them. The international community should not forgive India's perfidy lightly. The next time Indians arrive at the WTO with a pressing demand, let it chill on the agenda. And the next time India seeks foreign aid for AIDS, malaria, tuberculosis, et cetera, donors such as USAID and the Global Fund should absolutely refuse. Any country having spent billions of dollars to acquire nuclear weapons, or on follies such as a lunar exploration probe (coming in 2008!) clearly has significant sums to spend on public health; frankly, India neglects its citizens' health out of choice rather than fiscal stringency. This advice may sound harsh, but any government having India's aspirations must be taught that both globalization and human health are precious -- but desperately fragile -- things. To mock them as India has done is to destabilize the edifice upon which the welfare of billions of the world's least privileged people lies. Having knowingly deceived, India now belongs at the back of the queue for international respect and cooperation, for there are other poor countries far more deserving. Amir Attaran is associate professor of both law and international population health at the University of Ottawa, associate fellow of the Royal Institute of International Affairs, London, and author of Delivering Essential Medicines: The Way Forward (Chatham House, 2004). Roger Bate is a fellow of the American Enterprise Institute. From prasanna_aid at yahoo.com Tue Feb 15 16:26:17 2005 From: prasanna_aid at yahoo.com (Prasanna Saligram) Date: Tue, 15 Feb 2005 02:56:17 -0800 (PST) Subject: [Commons-Law] Amir Attaran on Indias Deadly Lies In-Reply-To: <68752c9f05021502426c759e7f@mail.gmail.com> Message-ID: <20050215105617.38761.qmail@web50307.mail.yahoo.com> Hi All, Can somebody from ALF send a rejoinder to this confused, hallucinated article written by the self styled improvers of Public Health through Globalisation? They seem to have jumbled up all the issues under the sky and then talking in Oxymorons. Somebody needs to tell them that it is precisely because of the forces of Globalisation and privatisation that the Public Institutions are getting undermined by Government with misplaced priorities. They also need to be told that what the Global Fund, USAID and such other organisations offer are the agendas of the pharmaceutical companies promoting unwanted medications in the name of Public-Private Partnership ( eg. is GAVi and Lymphatic filariasis) and hence maybe Indian Government would be better off not aproaching ( or has it always been the other way with these coming with their neo liberal agendas to the Indian Government? ) these organisations which also tie their aid to the other religious fundamentalist doctrines of the Bush Administration Ram, Do you have the email addresses of these two? Thanks Prasanna Ram wrote: India's Deadly Lies By Amir Attaran and Roger Bate source: Tech Central Station The World Trade Organization has long faced angry accusations that its patent rules deny patients in poor countries life-saving medicines by making them too expensive. But starting three years ago, two academic studies -- one in the Journal of the American Medical Association and the other in Health Affairs -- expressed doubts at the magnitude of the problem. Both argued that most of the medicines that WHO terms "essential" in developing countries are no longer patented -- fully 98% of them are off patent. As a result, efforts to assail and reform patent law would only affect health on the margins. Far more alarming, from a public health perspective, was the stingy government financing earmarked for population health (worldwide, no more than $200 million for malaria in 2003; a bit more for AIDS, less for tuberculosis), and the careless expenditure of foreign aid money on medically useless interventions, or on certain developing countries with a long record of treating their poor and sick citizens with contempt. The evidence, collated by one of us (Attaran), proved as much, and had to be reckoned with. Despite the overwhelming evidence that patents aren't an obstacle to essential medicines, India led a phalanx of developing countries and antiglobalization NGOs intent on doing away with the WTO's patent rules for medicines. They pushed so aggressively that at the WTO summit in Cancun in 2003, their interventions nearly scuppered the Doha Round of trade discussions and the future of the entire WTO. Only after a series of face-saving but ineffective compromises did India relent, and four days shy of a January 2005 deadline, it introduced pharmaceutical patenting. But while India has been vacillating over patents, its health systems are crumbling, making it patently obvious that its government cares not a jot for its people. A prime example of its lack of attention to healthcare is that by some estimates it may have more HIV positive people (over 5 million) than any other nation, including South Africa. But most amazing is this: the same Indian government that for years held the WTO to ransom never itself believed that medicine patents were a problem. Speaking at a medical conference in Bangalore two weeks ago, Indian Health Minister Anbumani Ramadoss confessed that "there is no need for any apprehension" over patents driving up the price of essential medicines in India, since 90 percent of them are not patented. The health minister's rounding errors aside, this is basically the right answer, and Mr. Ramadoss is correctly, if belatedly, concluding that India will be only slightly affected by medicine patents. But where was India's acknowledgement of that fact as recently as 2004, when it was leading the anti-patent voices at the WTO? At that time, India justified its tergiversation by insisting that it was concerned for its citizens' health. How very untrue. At the same conference in Bangalore, Indian Finance Minister Palaniappan Chidambaram explained why his fellow citizens are among the most diseased in the world. Calling his own government's efforts "inadequate for [the] health sector", he unveiled figures showing that India spends 4.5% of its GDP on health, of which only 0.9% is public expenditure. No government in South Asia spends less, making New Delhi dead last (tragic pun intended) in providing for its citizens' health. What's more, India stalled forward progress on trade liberalization at a time when other poor countries desperately required the benefits it would bring. India sold out Africa, one could say. Far from being actuated by health concerns, in hindsight India's cynical diplomacy seems motivated by a desire that disputes over patents not interfere with India's now burgeoning pharmaceutical export trade ($460 million to the USA last year). Meanwhile, seen from a slowly-propelled bicycle, the health of poor Indian villagers is shockingly worse than in much of Africa. Few medicines, whether patented or not, are available in public hospitals, principally because the government does not care to provide them. We are haunted by the sight of a man, crossing the road, dragging behind him a leg made lame and elephantine by lymphatic filariasis -- a disease for which Western pharmaceutical firms offer the medicines not just cheaply, but for free, if only the elites and Brahmins officiating in New Delhi cared to distribute them. The international community should not forgive India's perfidy lightly. The next time Indians arrive at the WTO with a pressing demand, let it chill on the agenda. And the next time India seeks foreign aid for AIDS, malaria, tuberculosis, et cetera, donors such as USAID and the Global Fund should absolutely refuse. Any country having spent billions of dollars to acquire nuclear weapons, or on follies such as a lunar exploration probe (coming in 2008!) clearly has significant sums to spend on public health; frankly, India neglects its citizens' health out of choice rather than fiscal stringency. This advice may sound harsh, but any government having India's aspirations must be taught that both globalization and human health are precious -- but desperately fragile -- things. To mock them as India has done is to destabilize the edifice upon which the welfare of billions of the world's least privileged people lies. Having knowingly deceived, India now belongs at the back of the queue for international respect and cooperation, for there are other poor countries far more deserving. Amir Attaran is associate professor of both law and international population health at the University of Ottawa, associate fellow of the Royal Institute of International Affairs, London, and author of Delivering Essential Medicines: The Way Forward (Chatham House, 2004). Roger Bate is a fellow of the American Enterprise Institute. _______________________________________________ commons-law mailing list commons-law at sarai.net https://mail.sarai.net/mailman/listinfo/commons-law ------------------------------------------------------------------------ Prasanna AID Bangalore / People's Health Movement Tel: + 91 80 23353459 (R) and + 91 98455 18382(M) ------------------------------------------------------------------------ "It is better to light a candle than complain about the darkness". Join AID India, visit www.aidindia.org. __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050215/286ab964/attachment.html From srinivas at southcentre.org Tue Feb 15 16:53:15 2005 From: srinivas at southcentre.org (srinivas at southcentre.org) Date: Tue, 15 Feb 2005 12:23:15 +0100 Subject: [Commons-Law] Re: commons-law Digest, Vol 19, Issue 17 In-Reply-To: <20050215095152.2A9B728D955@mail.sarai.net> Message-ID: Every one knows that Tech Central Station is a pro market pro bush pro big business publication.I think counterpunch has an article on the origins of Tech Central Station. They have supporters and fellow travellers in India and one of them has argued that restrictions on pesticides are bad .It is the same old story of Toxic Sludge is good for you type of PR. I think daya sankar has written a piece where he critically examines some of the assertions of amir attran.try for it in www.ssrn.com 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/20050215/d0109943/attachment.html From anivar.aravind at gmail.com Wed Feb 16 07:18:53 2005 From: anivar.aravind at gmail.com (Anivar Aravind) Date: Wed, 16 Feb 2005 07:18:53 +0530 Subject: [Commons-Law] Fwd: 1970 patent law quick review Message-ID: <35f96d47050215174852aff4b@mail.gmail.com> -------- Original Message -------- From: "André Rebentisch" To: in-parl at ffii.org Subject: 1970 patent law quick review List-Id: FFII India I just read the 1970th. Very detailed. For a good patent law it is also useful to describe what a patent actually is, what it is indended for, why it is granted by state and so on. This is not important for the patent granted under a patent law itself but for patent law's further development. Often attorneys adopt their normative theories from the law. 1. It has to be stressed that patent law is an incentive system, an instrument which a state applies to reach certain effects. I miss something like: Why is there a patent law at all? 2. The so called property theory has to be rejected which causes so much confusion. The problem with the 1970 act is that it says these inventions are not patentable rather than these issues are no inventions and thus not patentable. "CHAPTER II INVENTIONS NOT PATENTABLE" where 3. What are not inventions The following are not inventions within the meaning of this Act, - a. an invention which is frivolous or which claims anything obvious contrary to well established natural laws; b. an invention the primary or intended use of which would be contrary to law or morality or injurious to public health; c. the mere discovery of a scientific principle or the formulation of an abstract theory; .... It is somehow illogical to say an invention is a not invention. This can only be understood when you stress the "within the meaning..." So there are two subsets "inventions under Indian Patent law" and " other inventions" Undefined however is what's a non-invention! The wording is dangerous because even when you say it is not an invention under Indian law you agree that it is an "invention", in invention which is not granted the right to get patented. Further it is better to say that these are not inventions and non-patentable, because there might be "other acts" under which it could be patentable. a) and b) are better under 4), because these are exeptions for other reasons and systematically break the Article. "an invention which is frivolous or which claims anything obvious contrary to well established natural laws; b. an invention the primary or intended use of which would be contrary to law or morality or injurious to public health;" It is difficult for me to understand what inpact this actually has so I assume it is the same you find in all patent laws. 6) "First to Invent" rule, no first to file! "p. "person" includes the Government;" --- ??? Person is not defined, but I believe that only natural persons may apply here. Intresting: - no language regulation so far I can see - no specification what can be done with a patent, no real enforcement regulation. You get a patent ... and what then? - how long is it granted? - regulation of revocation is weak. - general clause 3 a/b can be used in pratice to withdraw a patent - are there patents "by the Government"? Very intresting for us: The 2002 industry definition (ac) "capable of industrial application", in relation to an invention, means that the invention is capable of being made or used in an industry. However it remains somehow recursive. What is industry? Here the economic sector theory could apply. Good. Ah, 2002 3a) was touched. Well, from my perspective the law looks more or less chaotic. It is not that bad. It seemed to be subject of serious struggle. The systematics is somehow broken. It has to be reorganised. _______________________________________________ In-parl maillist Subscribe through the project system http://www.ffii.org/assoc/knecht/proj/, fine-tune via http://lists.ffii.org/mailman/listinfo/in-parl http://lists.ffii.org/mailman/listinfo/in-parl --- Anivar Aravind From anivar.aravind at gmail.com Wed Feb 16 12:09:02 2005 From: anivar.aravind at gmail.com (Anivar Aravind) Date: Wed, 16 Feb 2005 12:09:02 +0530 Subject: [Commons-Law] "Bill Gates and other communists" article by RMS Message-ID: <35f96d47050215223966875816@mail.gmail.com> This is a Followup of CNET interview with Bill Gates http://news.com.com/Gates+taking+a+seat+in+your+den/2008-1041_3-5514121.html?tag=nl >From Slash dot: soloport writes "C|Net has published an article, written by RMS, in which Stallman points out that Gates is merely calling the kettle communist. Toward the end of the article, Stallman strengthens his point by feeding Bill his own words. Back in 1991, Bill said, in an internal memo: 'If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today...A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose.' Now, if only Bill were as clear-minded on the subjects of Innovation and Interoperability." Bill Gates and other communists =========================== February 15, 2005, 3:55 AM PT By Richard Stallman http://tinyurl.com/5ouyy When CNET News.com asked Bill Gates about software patents, he shifted the subject to "intellectual property," blurring the issue with various other laws. Then he said anyone who won't give blanket support to all these laws is a communist. Since I'm not a communist but I have criticized software patents, I got to thinking this might be aimed at me. When someone uses the term "intellectual property," typically he's either confused himself, or trying to confuse you. The term is used to lump together copyright law, patent law and various other laws, whose requirements and effects are entirely different. Why is Mr. Gates lumping these issues together? Let's study the differences he has chosen to obscure. Software developers are not up in arms against copyright law, because the developer of a program holds the copyright on the program; as long as the programmers wrote the code themselves, no one else has a copyright on their code. There is no danger that strangers could have a valid case of copyright infringement against them. Thanks to Mr. Gates, we now know that an open Internet with protocols anyone can implement is communism. Patents are a different story. Software patents don't cover programs or code; they cover ideas (methods, techniques, features, algorithms, etc.). Developing a large program entails combining thousands of ideas, and even if a few of them are new, the rest needs must have come from other software the developer has seen. If each of these ideas could be patented by someone, every large program would likely infringe hundreds of patents. Developing a large program means laying oneself open to hundreds of potential lawsuits. Software patents are menaces to software developers, and to the users, who can also be sued. A few fortunate software developers avoid most of the danger. These are the megacorporations, which typically have thousands of patents each, and cross-license with each other. This gives them an advantage over smaller rivals not in a position to do likewise. That's why it is generally the megacorporations that lobby for software patents. Today's Microsoft is a megacorporation with thousands of patents. Microsoft said in court that the main competition for MS Windows is "Linux," meaning the free software GNU/Linux operating system. Leaked internal documents say that Microsoft aims to use software patents to stop the development of GNU/Linux. When Mr. Gates started hyping his solution to the problem of spam, I suspected this was a plan to use patents to grab control of the Net. Sure enough, in 2004 Microsoft asked the IETF (Internet Engineering Task Force) to approve a mail protocol that Microsoft was trying to patent. The license policy for the protocol was designed to forbid free software entirely. No program supporting this mail protocol could be released as free software--not under the GNU GPL (General Public License), or the MPL (Mozilla Public License), or the Apache license, or either of the BSD licenses, or any other. The IETF rejected Microsoft's protocol, but Microsoft said it would try to convince major ISPs to use it anyway. Thanks to Mr. Gates, we now know that an open Internet with protocols anyone can implement is communism; it was set up by that famous communist agent, the U.S. Department of Defense. From pi at attacksyour.net Wed Feb 16 19:48:41 2005 From: pi at attacksyour.net (martin pichlmair) Date: Wed, 16 Feb 2005 15:18:41 +0100 Subject: [Commons-Law] open source history? Message-ID: <7ae5d56a60f63c7d957b270e7b908f27@attacksyour.net> dear list, as this is my first posting i should note as an introduction that the commons-law mailing list is the one i usually read first when i finished my regular inbox. i really appreciate the high quality of topics discussed and brought to surface here. i am teaching at the technical university of vienna. my main area of interest is media art, yet i also have to teach some courses that stretch the borders of this topic. in the next semester i have to give a course on "community networks". in this course the notion of commons naturally plays a significant role. as an entry point i want to give open source software an extensive treatment. the problem is that most histories of open source software that i find begin in the arpanet realm of the 1960ies. open source code is perceived by most authors (erich raymond being the most popular example) as a pure technical situation, whereas i strongly believe that the social phenomenon has roots that stretch further back into history. my question to the list is: does anybody on this list have knowledge about historic (or maybe even contemporary) examples of open source code beyond software? any help, tips, directions are welcome. lg martin ........................................................................ ........ martin pichlmair phone ++43 1 58801 187 -33 design & assessment of technology institute vienna university of technology http://igw.tuwien.ac.at/igw/ favoritenstrasse 9-11 1040 vienna austria From hbs.law at gmail.com Wed Feb 16 20:57:59 2005 From: hbs.law at gmail.com (Hasit seth) Date: Wed, 16 Feb 2005 10:27:59 -0500 Subject: [Commons-Law] Fwd: 1970 patent law quick review (Anivar Aravind) In-Reply-To: <20050216110006.ECE4128E12C@mail.sarai.net> References: <20050216110006.ECE4128E12C@mail.sarai.net> Message-ID: <8b60429e0502160727659c14b@mail.gmail.com> Hi Arvind, I try to address some of your general concerns below. > 1. It has to be stressed that patent law is an incentive system, an > instrument which a state applies to > reach certain effects. I miss something like: Why is there a patent law at all? Patent law has three goals 1. Encourage disclosure and dissemination of scientific and technical knowledge, hence create a public domain 2. Create a central respository of knowledge, hence providing a secured and long-lasting public domain repository 3. Provide incentives to the inventors in return for his/her agreeing to disclose his/her invention to the public. This is the "contract/barter between government and inventor" view of patent law . Another, view is that patent provides "a currency for inventions" in the sense that if a inventor has a patent then he/she can specifically license rights to those patents to others. Without such a concrete "currency" form of invention, it would require a new type of contract each time the rights to the invention need to be transferred. > 2. The so called property theory has to be rejected which causes so > much confusion. In US, patent is considered a "right to exclude" and not a right to exclusively make something. Patent is a valuble proprietary right in practical commerce and industry, whatever be its theoretical foundations. I do not know if considering patent as property really causes "confusion" . To me question is whether patent law (or some part of it) is hampering or promoting quantity and quality of inventions and innovations? > Undefined however is what's a non-invention! The wording is dangerous > because even when you say it is not an invention under Indian law > you agree that it is an "invention", in invention which is not granted > the right to get patented. The 1970 Act defines "invention" in the sense of "patentable inventions". It does not mean that other inventions not covered by the Act are non-inventions. It just means by inference that inventions not covered by the Act are "non-patentable inventions". Your other concerns about statutory language are valid and need to looked into. Regards, Hasit Seth > > 1. Fwd: 1970 patent law quick review (Anivar Aravind) > 2. "Bill Gates and other communists" article by RMS (Anivar Aravind) > > ---------------------------------------------------------------------- > > Message: 1 > Date: Wed, 16 Feb 2005 07:18:53 +0530 > From: Anivar Aravind > Subject: [Commons-Law] Fwd: 1970 patent law quick review > To: commons-law at sarai.net > Message-ID: <35f96d47050215174852aff4b at mail.gmail.com> > Content-Type: text/plain; charset="ISO-8859-1" > > -------- Original Message -------- > From: "André Rebentisch" > To: in-parl at ffii.org > Subject: 1970 patent law quick review > List-Id: FFII India > > I just read the 1970th. Very detailed. > > For a good patent law it is also useful to describe what a patent actually is, > what it is indended for, why it is granted by state and so on. > > This is not important for the patent granted under a patent law itself > but for patent law's further development. > Often attorneys adopt their normative theories from the law. > > 1. It has to be stressed that patent law is an incentive system, an > instrument which a state applies to > reach certain effects. I miss something like: Why is there a patent law at all? > > 2. The so called property theory has to be rejected which causes so > much confusion. > > The problem with the 1970 act is that it says these inventions are not > patentable rather than these issues are no inventions > and thus not patentable. > > "CHAPTER II > INVENTIONS NOT PATENTABLE" > > where 3. What are not inventions > > The following are not inventions within the meaning of this Act, - > a. an invention which is frivolous or which claims anything obvious contrary > to well established natural laws; > b. an invention the primary or intended use of which would be contrary to law > or morality or injurious to public health; > c. the mere discovery of a scientific principle or the formulation of > an abstract > theory; > .... > > It is somehow illogical to say an invention is a not invention. This > can only be understood when you stress the "within the meaning..." > So there are two subsets "inventions under Indian Patent law" and " > other inventions" > > Undefined however is what's a non-invention! The wording is dangerous > because even when you say it is not an invention under Indian law > you agree that it is an "invention", in invention which is not granted > the right to get patented. > > Further it is better to say that these are not inventions and > non-patentable, because there might be "other acts" under which it > could be patentable. > > a) and b) are better under 4), because these are exeptions for other > reasons and systematically break the Article. > > "an invention which is frivolous or which claims anything obvious > contrary to well established natural laws; > b. an invention the primary or intended use of which would be contrary > to law or morality or injurious to public health;" > > It is difficult for me to understand what inpact this actually has so > I assume it is the same you find in all patent laws. > > 6) "First to Invent" rule, no first to file! > > "p. "person" includes the Government;" --- ??? > > Person is not defined, but I believe that only natural persons may apply here. > > Intresting: > - no language regulation so far I can see > - no specification what can be done with a patent, > no real enforcement regulation. You get a patent ... and what then? > - how long is it granted? > - regulation of revocation is weak. > - general clause 3 a/b can be used in pratice to withdraw a patent > - are there patents "by the Government"? > > Very intresting for us: The 2002 industry definition > > (ac) "capable of industrial application", in relation to an invention, > means that the invention is capable of being made or used in an > industry. > > However it remains somehow recursive. What is industry? Here the > economic sector theory could apply. Good. > > Ah, 2002 3a) was touched. > > Well, from my perspective the law looks more or less chaotic. It is > not that bad. It seemed to be subject of serious struggle. > The systematics is somehow broken. It has to be reorganised. > > _______________________________________________ > In-parl maillist > Subscribe through the project system > http://www.ffii.org/assoc/knecht/proj/, fine-tune via > http://lists.ffii.org/mailman/listinfo/in-parl > http://lists.ffii.org/mailman/listinfo/in-parl > > --- > Anivar Aravind > > ------------------------------ > > Message: 2 > Date: Wed, 16 Feb 2005 12:09:02 +0530 > From: Anivar Aravind > Subject: [Commons-Law] "Bill Gates and other communists" article by > RMS > To: bytesforall_readers at yahoogroups.com, reader-list at sarai.net, > commons-law at sarai.net > Message-ID: <35f96d47050215223966875816 at mail.gmail.com> > Content-Type: text/plain; charset="US-ASCII" > > This is a Followup of CNET interview with Bill Gates > http://news.com.com/Gates+taking+a+seat+in+your+den/2008-1041_3-5514121.html?tag=nl > > >From Slash dot: > soloport writes "C|Net has published an article, written by RMS, in > which Stallman points out that Gates is merely calling the kettle > communist. Toward the end of the article, Stallman strengthens his > point by feeding Bill his own words. Back in 1991, Bill said, in an > internal memo: 'If people had understood how patents would be granted > when most of today's ideas were invented and had taken out patents, > the industry would be at a complete standstill today...A future > start-up with no patents of its own will be forced to pay whatever > price the giants choose to impose.' Now, if only Bill were as > clear-minded on the subjects of Innovation and Interoperability." > > Bill Gates and other communists > =========================== > February 15, 2005, 3:55 AM PT > By Richard Stallman > > http://tinyurl.com/5ouyy > > When CNET News.com asked Bill Gates about software patents, he shifted > the subject to "intellectual property," blurring the issue with > various other laws. > > Then he said anyone who won't give blanket support to all these laws > is a communist. Since I'm not a communist but I have criticized > software patents, I got to thinking this might be aimed at me. > > When someone uses the term "intellectual property," typically he's > either confused himself, or trying to confuse you. The term is used to > lump together copyright law, patent law and various other laws, whose > requirements and effects are entirely different. Why is Mr. Gates > lumping these issues together? Let's study the differences he has > chosen to obscure. > > Software developers are not up in arms against copyright law, because > the developer of a program holds the copyright on the program; as long > as the programmers wrote the code themselves, no one else has a > copyright on their code. There is no danger that strangers could have > a valid case of copyright infringement against them. > > Thanks to Mr. Gates, we now know that an open Internet with protocols > anyone can implement is communism. > Patents are a different story. Software patents don't cover programs > or code; they cover ideas (methods, techniques, features, algorithms, > etc.). Developing a large program entails combining thousands of > ideas, and even if a few of them are new, the rest needs must have > come from other software the developer has seen. If each of these > ideas could be patented by someone, every large program would likely > infringe hundreds of patents. Developing a large program means laying > oneself open to hundreds of potential lawsuits. Software patents are > menaces to software developers, and to the users, who can also be > sued. > > A few fortunate software developers avoid most of the danger. These > are the megacorporations, which typically have thousands of patents > each, and cross-license with each other. This gives them an advantage > over smaller rivals not in a position to do likewise. That's why it is > generally the megacorporations that lobby for software patents. > > Today's Microsoft is a megacorporation with thousands of patents. > Microsoft said in court that the main competition for MS Windows is > "Linux," meaning the free software GNU/Linux operating system. Leaked > internal documents say that Microsoft aims to use software patents to > stop the development of GNU/Linux. > > When Mr. Gates started hyping his solution to the problem of spam, I > suspected this was a plan to use patents to grab control of the Net. > Sure enough, in 2004 Microsoft asked the IETF (Internet Engineering > Task Force) to approve a mail protocol that Microsoft was trying to > patent. The license policy for the protocol was designed to forbid > free software entirely. No program supporting this mail protocol could > be released as free software--not under the GNU GPL (General Public > License), or the MPL (Mozilla Public License), or the Apache license, > or either of the BSD licenses, or any other. > > The IETF rejected Microsoft's protocol, but Microsoft said it would > try to convince major ISPs to use it anyway. Thanks to Mr. Gates, we > now know that an open Internet with protocols anyone can implement is > communism; it was set up by that famous communist agent, the U.S. > Department of Defense. > > ------------------------------ > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > > End of commons-law Digest, Vol 19, Issue 19 > ******************************************* > From hbs.law at gmail.com Wed Feb 16 22:07:48 2005 From: hbs.law at gmail.com (Hasit seth) Date: Wed, 16 Feb 2005 11:37:48 -0500 Subject: [Commons-Law] "Bill Gates and other communists" article by RMS (Anivar Aravind) In-Reply-To: <20050216110006.ECE4128E12C@mail.sarai.net> References: <20050216110006.ECE4128E12C@mail.sarai.net> Message-ID: <8b60429e05021608374fb18015@mail.gmail.com> Hello, I apologize for mispelling Aravind's name as Arvind in last post. My sincere regrets. I have a great respect for Richard Stallman (RMS). Not just as a great programmer (GNU and Emacs) but also as a visionary who envisioned that free software is a practical idea. There is enough buzz about anti-software patents that it is hard to answer so many concerns. Why are patents a problem only in two areas of software and pharma-biotech? Patents over mechanical, chemical, electronic, electrical technologies seem to have no problem for those who oppose software and pharma-biotech patents. In theory a mechanic with screws, nut-bolts, weilding machine, sheet metal and a forging press should be able to create aeroplanes, cars and what not. Such a mechanic would be infringing thousands of patents. Take a chemist, who has a periodic table and bottles of all the elements listed there, could theoretically make every possible patented medicine. But this has never been a concern because the innovation in these areas is complex. Common sense tells us that making an argument for such a hypothetical super-mechanic or chemist is naive, since inventing is hardly so obvious as to hamper other inventors innovations. The computer you are using has probably hundreds of patented IC circuits and the Intel/AMD/VIA processor inside it has hundreds of patents protecting it. Some circuit designers may be hampered by these patented processors in their goal to design a new processor. One solution is that they can license the patents. But other solution is what the patent system really wants you to do - invent around it, design around it, make your own invention. This is the key, but being "obstructionist" in apprerance, patents really encourage more innovation by forcing inventors to find new ways towards the same goal. In a sense this is economic waste, why reinvent the wheel? But wheel since the ancient time has not remained the same, think that Goodyear was not allowed to make wooden wheels due to a hypotehtical patent and that led him to develop the rubber process that ultimately led to pneumatic rubber tyres - that would be innovation though the imaginary wheel patent was "obstructionist". Story goes that in 19th century one US patent office recommended that the patent office be closed since all that was to be invented was already done and nothing more remained. But innovation and invention is an never ending source. We humans are masters of finding new ways of solving problems. Plus, some alternative that was developed due to a patent hurdle may be useful in some other field, who knows? Since innovation is incremental, more patent disclosures (now within 18 months a patent is filed it gets published for others to learn) provide scientists and engineers even greater base to invent more. Now software programmers do feel does that mean that I have to read a thousand patents before I write a 1000 line program? Compare software innovation with the two microprocessor and wheel situations, a lot of answers are there - though not all. Pharma-biotech patents concerns morality and social issues (arguments of type: should a dying person be not able to get medicine just because it is expensive and patented). It is a question of economics of invention and social policy about health, hence they are out of context when considering software patents. But software patents are something else. Here is my take on this topic. First, because of internet and cheap computers, any one can create even a complex operating system. Well Bill Gates did it (MS-DOS) and so did Linus Torvalds (Linux). The entry barrier to creating a complex software invention is very low, and hence there is a valid argument for freedom to write software without worrying about patents. If I alone can do it why should I not be able to do it? Second, the whole argument got momentum because of a stupid job done by U.S. Patent Office in examining the inventions and granting a lot of inital patents without looking at prior art. The fault lies in examining software patents before issuance, rather than anything innately wrong with software patents. Otherwise, all sorts of mechanical and chemical patents too would be troublesome to inventors in those fields and to the public at large. Third, it is also a question of time. Software sprang up in last 20-30 years at a pace unmatched by any other technology. This meant that initially the patent offices had very little prior patents to rely on in rejecting the early patent applications and offices didn't have trained examiners who knew a lot of software technical literature to reject those patent applications. Over time, a large pool of prior patents will become available and those in patent practice are already finding it terribly hard to get very broad patents issued. More the prior art, narrower the patents, and more is the inventive freedom to design around it. Fourth, lexicon is a problem with software. It is hard to express software elements in terms of language. Today, every programmer can recognize terms like parsers, browsers, protocol, kernel etc., and one cannot even think of getting a patent on these. But software develops at rapid pace, and words do not exist most of the time to describe a lot of software. This ends up in a patent office as a broadly described software patent which claims the result but not the process by which it is achieved. This is just a matter of time, just like mechanical and chemical fields, terminology will become standardized and we will see a lot of less broad software patents. Fifth, the level of disclosure detail required by patent office. US Patent office required inventors till early 20th century to submit actual models of their invention. They discontinued this practice since mechanical inventions got narrower and narrower. For biotech still sequence listing are required to be deposited. I wish they required this for software too, so that it is not claimed at the level of an idea but an actual method backed by progam listing or pseudo-code to back it up. Sixith, physical nature of software is unlike a chemical or a machine. It is expressed in writing, which as RMS mentions should be protected by copyright. Though it is writing, it is a set of instructions that makes a computer behave in particular way. Hence, it is also functional, and copyright does not extend to functional stuff, but expressions. Seventh, so much of open source software is being developed without software patent posing as problems. SCO v. IBM battle is hardly about specific software patents, but more about copyright/code theft. Java virtual machine architecture from Sun exists and so does virtual machines from Microsoft's .NET virutal machines. Though empirical, this does point out that the problem is not an epidemic that has paralyzed software development around the world. Eight, tons of stuff can be said about the way the patents are enforced. Getting a patent is just the beginnning. To enforce it is a bigger problem, perhaps than defending it. Keeping aside the high American legal fee issues, patents with broad to narrow scopes keep getting invalidated in courts all the time. An issued patent when litigated gets attacked by a million pieces of prior art (which can include even an obscure Ph.D thesis dated before the invention in a small library of a tiny college in some little country barely visible on a map) and not just those which were available to the examiner. In short, enforcing a patent is a herculean task, and it is no wonder that many broad patent enforcement suits died before being harmful in anyway to innovation. There is a lot more to be said about this. Some other time. Regards, Hasit Seth On Wed, 16 Feb 2005 12:00:06 +0100 (CET), commons-law-request at sarai.net wrote: > Send commons-law mailing list submissions to > commons-law at sarai.net > > To subscribe or unsubscribe via the World Wide Web, visit > https://mail.sarai.net/mailman/listinfo/commons-law > or, via email, send a message with subject or body 'help' to > commons-law-request at sarai.net > > You can reach the person managing the list at > commons-law-owner at sarai.net > > When replying, please edit your Subject line so it is more specific > than "Re: Contents of commons-law digest..." > > Today's Topics: > > 1. Fwd: 1970 patent law quick review (Anivar Aravind) > 2. "Bill Gates and other communists" article by RMS (Anivar Aravind) > > ---------------------------------------------------------------------- > > Message: 1 > Date: Wed, 16 Feb 2005 07:18:53 +0530 > From: Anivar Aravind > Subject: [Commons-Law] Fwd: 1970 patent law quick review > To: commons-law at sarai.net > Message-ID: <35f96d47050215174852aff4b at mail.gmail.com> > Content-Type: text/plain; charset="ISO-8859-1" > > -------- Original Message -------- > From: "André Rebentisch" > To: in-parl at ffii.org > Subject: 1970 patent law quick review > List-Id: FFII India > > I just read the 1970th. Very detailed. > > For a good patent law it is also useful to describe what a patent actually is, > what it is indended for, why it is granted by state and so on. > > This is not important for the patent granted under a patent law itself > but for patent law's further development. > Often attorneys adopt their normative theories from the law. > > 1. It has to be stressed that patent law is an incentive system, an > instrument which a state applies to > reach certain effects. I miss something like: Why is there a patent law at all? > > 2. The so called property theory has to be rejected which causes so > much confusion. > > The problem with the 1970 act is that it says these inventions are not > patentable rather than these issues are no inventions > and thus not patentable. > > "CHAPTER II > INVENTIONS NOT PATENTABLE" > > where 3. What are not inventions > > The following are not inventions within the meaning of this Act, - > a. an invention which is frivolous or which claims anything obvious contrary > to well established natural laws; > b. an invention the primary or intended use of which would be contrary to law > or morality or injurious to public health; > c. the mere discovery of a scientific principle or the formulation of > an abstract > theory; > .... > > It is somehow illogical to say an invention is a not invention. This > can only be understood when you stress the "within the meaning..." > So there are two subsets "inventions under Indian Patent law" and " > other inventions" > > Undefined however is what's a non-invention! The wording is dangerous > because even when you say it is not an invention under Indian law > you agree that it is an "invention", in invention which is not granted > the right to get patented. > > Further it is better to say that these are not inventions and > non-patentable, because there might be "other acts" under which it > could be patentable. > > a) and b) are better under 4), because these are exeptions for other > reasons and systematically break the Article. > > "an invention which is frivolous or which claims anything obvious > contrary to well established natural laws; > b. an invention the primary or intended use of which would be contrary > to law or morality or injurious to public health;" > > It is difficult for me to understand what inpact this actually has so > I assume it is the same you find in all patent laws. > > 6) "First to Invent" rule, no first to file! > > "p. "person" includes the Government;" --- ??? > > Person is not defined, but I believe that only natural persons may apply here. > > Intresting: > - no language regulation so far I can see > - no specification what can be done with a patent, > no real enforcement regulation. You get a patent ... and what then? > - how long is it granted? > - regulation of revocation is weak. > - general clause 3 a/b can be used in pratice to withdraw a patent > - are there patents "by the Government"? > > Very intresting for us: The 2002 industry definition > > (ac) "capable of industrial application", in relation to an invention, > means that the invention is capable of being made or used in an > industry. > > However it remains somehow recursive. What is industry? Here the > economic sector theory could apply. Good. > > Ah, 2002 3a) was touched. > > Well, from my perspective the law looks more or less chaotic. It is > not that bad. It seemed to be subject of serious struggle. > The systematics is somehow broken. It has to be reorganised. > > _______________________________________________ > In-parl maillist > Subscribe through the project system > http://www.ffii.org/assoc/knecht/proj/, fine-tune via > http://lists.ffii.org/mailman/listinfo/in-parl > http://lists.ffii.org/mailman/listinfo/in-parl > > --- > Anivar Aravind > > ------------------------------ > > Message: 2 > Date: Wed, 16 Feb 2005 12:09:02 +0530 > From: Anivar Aravind > Subject: [Commons-Law] "Bill Gates and other communists" article by > RMS > To: bytesforall_readers at yahoogroups.com, reader-list at sarai.net, > commons-law at sarai.net > Message-ID: <35f96d47050215223966875816 at mail.gmail.com> > Content-Type: text/plain; charset="US-ASCII" > > This is a Followup of CNET interview with Bill Gates > http://news.com.com/Gates+taking+a+seat+in+your+den/2008-1041_3-5514121.html?tag=nl > > >From Slash dot: > soloport writes "C|Net has published an article, written by RMS, in > which Stallman points out that Gates is merely calling the kettle > communist. Toward the end of the article, Stallman strengthens his > point by feeding Bill his own words. Back in 1991, Bill said, in an > internal memo: 'If people had understood how patents would be granted > when most of today's ideas were invented and had taken out patents, > the industry would be at a complete standstill today...A future > start-up with no patents of its own will be forced to pay whatever > price the giants choose to impose.' Now, if only Bill were as > clear-minded on the subjects of Innovation and Interoperability." > > Bill Gates and other communists > =========================== > February 15, 2005, 3:55 AM PT > By Richard Stallman > > http://tinyurl.com/5ouyy > > When CNET News.com asked Bill Gates about software patents, he shifted > the subject to "intellectual property," blurring the issue with > various other laws. > > Then he said anyone who won't give blanket support to all these laws > is a communist. Since I'm not a communist but I have criticized > software patents, I got to thinking this might be aimed at me. > > When someone uses the term "intellectual property," typically he's > either confused himself, or trying to confuse you. The term is used to > lump together copyright law, patent law and various other laws, whose > requirements and effects are entirely different. Why is Mr. Gates > lumping these issues together? Let's study the differences he has > chosen to obscure. > > Software developers are not up in arms against copyright law, because > the developer of a program holds the copyright on the program; as long > as the programmers wrote the code themselves, no one else has a > copyright on their code. There is no danger that strangers could have > a valid case of copyright infringement against them. > > Thanks to Mr. Gates, we now know that an open Internet with protocols > anyone can implement is communism. > Patents are a different story. Software patents don't cover programs > or code; they cover ideas (methods, techniques, features, algorithms, > etc.). Developing a large program entails combining thousands of > ideas, and even if a few of them are new, the rest needs must have > come from other software the developer has seen. If each of these > ideas could be patented by someone, every large program would likely > infringe hundreds of patents. Developing a large program means laying > oneself open to hundreds of potential lawsuits. Software patents are > menaces to software developers, and to the users, who can also be > sued. > > A few fortunate software developers avoid most of the danger. These > are the megacorporations, which typically have thousands of patents > each, and cross-license with each other. This gives them an advantage > over smaller rivals not in a position to do likewise. That's why it is > generally the megacorporations that lobby for software patents. > > Today's Microsoft is a megacorporation with thousands of patents. > Microsoft said in court that the main competition for MS Windows is > "Linux," meaning the free software GNU/Linux operating system. Leaked > internal documents say that Microsoft aims to use software patents to > stop the development of GNU/Linux. > > When Mr. Gates started hyping his solution to the problem of spam, I > suspected this was a plan to use patents to grab control of the Net. > Sure enough, in 2004 Microsoft asked the IETF (Internet Engineering > Task Force) to approve a mail protocol that Microsoft was trying to > patent. The license policy for the protocol was designed to forbid > free software entirely. No program supporting this mail protocol could > be released as free software--not under the GNU GPL (General Public > License), or the MPL (Mozilla Public License), or the Apache license, > or either of the BSD licenses, or any other. > > The IETF rejected Microsoft's protocol, but Microsoft said it would > try to convince major ISPs to use it anyway. Thanks to Mr. Gates, we > now know that an open Internet with protocols anyone can implement is > communism; it was set up by that famous communist agent, the U.S. > Department of Defense. > > ------------------------------ > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > > End of commons-law Digest, Vol 19, Issue 19 > ******************************************* > From dev.gangjee at st-catherines.oxford.ac.uk Wed Feb 16 22:44:17 2005 From: dev.gangjee at st-catherines.oxford.ac.uk (Dev Gangjee) Date: Wed, 16 Feb 2005 17:14:17 +0000 (GMT) Subject: [Commons-Law] Open source history - reply to Martin In-Reply-To: <20050216153320.374BF28D8EF@mail.sarai.net> Message-ID: <20050216171417.458ED131AB@webmail221.herald.ox.ac.uk> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20050216/22e95c49/attachment.pl From bhagwati at sarai.net Thu Feb 17 14:51:17 2005 From: bhagwati at sarai.net (Bhagwati) Date: Thu, 17 Feb 2005 14:51:17 +0530 Subject: [Commons-Law] A man, with his notes, in the city... Message-ID: <4214620D.1000501@sarai.net> A man, with his notes, in the city... He would cut a curious figure anywhere, in his black pants and shirt, his signature sleeveless, white jacket cut in the Nehru style, but much longer, over it, wearing black glasses even inside a small, moderately lit room. But sitting just outside the make-up room, with many people (specially young women) flitting in and out of it, and with a new dress on each time, each more colourful and skimpier with each change, he doesn't strike me as odd at all. We are sitting inside a two-room studio where he is shooting for his next album. He is a singer, who became an instant hit with his song 'Janaaza mera uthne se pehle mehandi mat lagana tum' in 1998. “Video albums just can't be made without the singer, you see. People buy music albums because they like the singer – everywhere, from Bihar, UP, Rajasthan, and even in Kashmir,” he smiles. “All these are the places where my albums do well. And in Delhi, they are popular in different places – Uttam Nagar, Shakarpur etc.” Curious in the beginning about how well his albums were doing, he once went to a market far away from where he lives. He smiles, “While handing me the cassette, the shop owner realised I was the same person as the one on the cover. I could see from his eyes that his routine transaction turned into a memorable experience and he exclaimed, 'Yeh to aap hain!'' Mohammed Niyaz knows well now, how someone can seep into and become a pleasurable part of someone's routine, “You see, listeners may not have heard a song at first, but when they go back to their villages and hear them, they come back and buy the album. And once they like the singer, they buy each of his albums.” It has been a long journey for this singer whose voice is an everyday companion to bus and truck drivers, among others who make long journeys through different landscapes, in their lives. Mohammed Niyaz spent his childhood in a town in Sitapur district, near Lucknow. He spent his childhood listening to, relishing and singing behind Rafi and Talat Mahmood songs. Today, singing “sad songs” is his specialty. “When I first came to this industry, they told me, 'Beta, don't copy, develop your own style'. I don't copy them, but take their support. Everyone does – whether in bhajan, or in film songs.” Niyaz came to Delhi at the age of 20 in search of work. “I worked as an accountant for twelve years. Were it not for this job, I would never have been a singer,” he muses, suddenly turning melancholic. The Rs. 300 per month he earned from his job and which sustained him may not be the only bridge that lies between Niyaz the accountant and Niyaz the singer. He was restless in Delhi. “I never wanted to come,” he says. “Many of my friends had run away from home and come here, but I wanted to take my time”. For him, this time came with his father's illness and, being the eldest son, the responsibility to take care of the family. An avid listener of old film songs, he participated in the late evening and Sunday singing competitions organised in and around his locality. “Posters would be put up all over the locality. The entry fee would be anywhere between Rs. 10 and Rs. 50. Many young people would come and sing, and some distinguished personalities known to the organisers would judge the competitions. I felt encouraged to participate again and again because I always won a position.” Then, came his big break. “There was a competition on a much larger scale than the ones I had been participating in. It was called Yaad-e-Rafi. I was the 394th entry. I got shortlisted to the next round. We were 40 competitors. I sang Nain lar gaye re... And I won.” One of the judges was a producer in a music company. “Congratulating me on stage, he said I should consider joining the industry. That's it, there was no looking back.” Niyaz's childhood hobby led him to a perchance local talent hunt. Today, along all the cassettes he has collected and heard through the years, lie his own three albums. The beginning was rough, however. He started doing the rounds of companies, gave auditions. Initially, he was turned away. “They said there was no market for a voice like mine.” Then in 1996 Altaf Raja's 'Tum to thehre pardesi' became a super hit. He recalls, “There was a look out for singers who could sing sad songs. This field was in the hand of people with small companies. I went back to one of the companies, called Jai, and said, 'I sing like Altaf'.” His first album was created. But he had to wait a year before it was released. “Luckily I had not bound myself to the company”. Niyaz's advice to all newcomers to the industry is not to enter into a contract with any company. Contracts are of two kinds – for a certain period, or for a number of albums. You are paid a certain amount for the contract, but if during the period of the contract another singer becomes more popular, the company may stop making any new albums with you. As you are bound, you are put out of circulation and, so, of public memory. This is not a loss for the company, as any singer who is even mildly successful helps in creating a market for future releases for it. “But” he says, “as I was not bound to the company, I made an album with another company while I waited for my first album to be released and its video to be made.” What does Niyaz think about this industry, which he followed as a fan, and then made his way into, from an unwanted stranger, to promoting himself through a likeness of his voice with a known name, to becoming a hit himself? His reply is of a person who understands destiny is not what one person makes alone and only for himself, “If Janaza mera... was not a hit, no one would have asked about me. People who were with me say, Niyaz mere saath gata tha, and they also get a break.” Today, three albums old, Niyaz is trying to break away from his image as a singer of “sad songs”. “Today, when I sing eight songs, I try and make four romantic. That's 50 per cent”, he says.” I take my leave from Niyaz for now, as he has to resume shooting. On the way back home, I stop by at a familiar CD burning shop, where CDs are filled on demand with the customer's selection of songs. It is the season of marriages. A young boy comes and presents the shop owner with a list of “sad songs”, takes a promise of delivery by evening, and leaves. I raise my eye brows quizzically, unable to understand. The shopkeeper explains knowingly and in a matter-of-fact manner, “It's a gift for the girl who's getting married. Probably his neighbour, and heart-throb.” What I still don't know is if he will gift this to her, or play it to himself, singing after what he hears,humming it to himself in his quiet moments. I wonder if this is not another singer in the making, and make my way towards home. [This text is from an interview with Mohammed Niyaz in 2004, as part of the PPHP Research. See http://www.sarai.net] From jaynakothari at justice.com Thu Feb 17 15:26:14 2005 From: jaynakothari at justice.com (jaynakothari at justice.com) Date: Thu, 17 Feb 2005 01:56:14 -0800 (PST) Subject: [Commons-Law] Open source history - reply to Martin Message-ID: <20050217095615.6611.fh035.wm@smtp.sc0.cp.net> Dear Martin, As Dev said, there is a lot of literature available on the use of open source methodologies beyond software such as collective invention for the invention of industrial technology, scientific research and even design. Some of the articles i have come across are as follows: M Osterloh and S Rota ‘Open Source Software Development – Just Another case of Collective Invention?’ [March 2004] Available at http://ssrn.com/abstract=561744 P Chandavarkar ‘Crafting the Public Realm: Speculations on the Potential of Open Source Methodologies in Development by Design’ Available at http://www.thinkcycle.org/tc-papers/?paper_id=37458&show_full=1 R C Allen ‘Collective Invention’ Vol. 4(1) Journal of Economic Behaviour and Organisation 1-24 Also, I have been working on a paper on advocating the use of open source methodology for design and art for a conference in March, and so I have also been researching on this issue quite actively. cheers, Jayna On Wed, 16 Feb 2005 17:14:17 +0000 (GMT), Dev Gangjee wrote: > > Dear Martin > > This is probably the first of many responses but the > work I'm familiar with > concerns collective innovation in opposition to the > patent system. > > The example that crops up often in the literature is > the collective innovation > practises regarding the Cornish Steam Engine around the > time James Watt was > going down the patent route. > A good start would be - > Inventing the Industrial Revolution: the English Patent > System, 1660-1800 > By Christine MacLeod > > See also > Collective Invention during the British Industrial > Revolution: > The Case of the Cornish Pumping Engine > by Alessandro Nuvolari (Eindhoven Centre for Innovation > Studies) > at > > > 'Openness' is beginning to be more readily acknowledged > by industries > ranging from publishing [open access electronic > journals] to biotechnology > [publishing genetic information freely on the web, > often reflecting the scientific ethos of exchanging > information but also to put material out > in the public domain and stop competitors from > patenting it] > > I know some people on this list have been working on > aspects of this for a while, so I'm sure there's more > to follow... > > Warm regards > > Dev > > > > 1. open source history? (martin pichlmair) > > > > > my question to the list is: > > does anybody on this list have knowledge about > historic (or maybe even > > contemporary) examples of open source code beyond > software? > > > > any help, tips, directions are welcome. > > > > lg > > martin > > > > > > > ........................................................................ > > ........ > > martin pichlmair > phone ++43 1 > > 58801 187 -33 > > design & assessment of technology institute > vienna university of > > technology > > http://igw.tuwien.ac.at/igw/ favoritenstrasse > 9-11 1040 vienna > > austria > > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law Ashira Law Advocates and Legal Consultants 50/6 Palace Road Bangalore 56 00 52 Ph: 0091-80-2261090 _________________________________________________ FindLaw - Free Case Law, Jobs, Library, Community http://www.FindLaw.com Get your FREE @JUSTICE.COM email! http://mail.Justice.com From fuller at xs4all.nl Thu Feb 17 15:41:42 2005 From: fuller at xs4all.nl (matthew fuller) Date: Thu, 17 Feb 2005 11:11:42 +0100 Subject: [Commons-Law] Open source history - reply to Martin Message-ID: Dear All, I think it has been mentioned on this list before, but a useful document in the context of Martin's question might be: Lawrence Liang, 'A Guide to Open Content Licenses', Media Design Research, PZI Rotterdam 2004, available at, http://pzwart.wdka.hro.nl/mdr/research/lliang/open_content_guide/index_html I'm interested in seeing whether there is any empirical work analysing and evaluating the kind of cultural work being done under these licenses, whether there are for instance new kinds of project work, or new genres of work emerging, Jayna is this something you are dealing with in your paper? All the best, Matthew From supreet.sethi at gmail.com Thu Feb 17 17:51:22 2005 From: supreet.sethi at gmail.com (Supreet Sethi) Date: Thu, 17 Feb 2005 17:51:22 +0530 Subject: [Commons-Law] Creative Commons Moving Image Contest Message-ID: A contest to create a 2-minute moving image that describes Creative Commons' mission. With "Get Creative", our Flash movie, we took a shot at explaining Creative Commons' mission. We're fond of it, but we think you could do an even better job. We now invite you to enter the Creative Commons Moving Image Contest, a competition to create a 2-minute moving image that articulates the Creative Commons mission. Find official rules and entry restriction here. WHAT: Create, or mash-up, a moving image that explains Creative Commons mission, using your favorite moving image authoring tool, such as Flash, iMovie, or Final Cut Pro. Entries can contain video, animated images, text, and audio. We welcome and encourage the use of other people's work, provided that you have permission or the work is Creative Commons-licensed or public domain. The entry should be 2 minutes or less. All entries must be licensed under a Creative Commons license of your choosing by time of entry. From announcer at crit.org.in Wed Feb 16 20:04:03 2005 From: announcer at crit.org.in (GIRNI KAMGAR) Date: Wed, 16 Feb 2005 20:04:03 +0530 Subject: [Commons-Law] Resolution on Mumbai Mill Lands Message-ID: Resolution by participants in the seminar TOWARDS A COMPREHENSIVE SOLUTION TO THE ISSUE OF MILL LANDS Wednesday 16 February 2005, Mumbai WE, citizens and stakeholders in the city of Mumbai (list of signatories below) who are gathered here, resolved to place the following resolution before the Government of Maharashtra for immediate consideration: The Mill Lands are the historic industrial core of today’s Mumbai Metropolitan Region. As the city authorities and state government seek to makeover Mumbai into a global city, the government has not recognised that these valuable lands were entrusted to mill owners to develop the textile industry and provide employment, not to speculate in real estate. This important fact has been repeatedly overlooked in the rush by mill owners and builders to cash in on the commercial value of the Mill Lands. In 1991, the Maharashtra Government addressed the issue by allowing sale and development of mill lands under certain conditions, framed in the Development Control Regulations of Greater Mumbai (DCR). In Section 58 of the DCR (1991) mill lands were to be shared in more or less equal thirds between the Municipal Corporation of Greater Mumbai (MCGM) for civic amenities; Maharashtra Housing Area Development Authority (MHADA), for public housing; and the owners for modernisation and development of the mills. This DCR was amended in 2001, and a provision introduced that within the land provided for public housing, 50% would be set aside for housing textile workers, and an additional provision made for job opportunities for the family members of the textile workers. These provisions were included in response to demands made by the textile workers, who lost their jobs due to mill closures in Central Mumbai. However these provisions will only be on paper, since the land now made available under the amended DCR is so miniscule. In the amended DCR of 2001, the land share of the mill owners has increased several times beyond the original one third. The land share of the MCGM, meant for creating open spaces and other facilities, as well as the land share for MHADA meant for public housing, have been reduced by more 90%, often to nil. This was done by making the one third divisions applicable only to vacant open land in the mills, and removing land on which structures are, or were, standing, from the purvey of the one third division. This would have made sense if the mills were still running. Since the mills are closed, the land made available should logically be the entire land, not just open spaces or those on which structures stood. These structures have been or are being demolished, to make space for a real estate bonanza for mill owners and builders, development which gives nothing to the workers, or the city at large. The closure of the mills has already deprived the workers their livelihood. The new modifications proposed to the DCR, while claiming to strengthen these rights, will actually hand over the mill lands to the owners, to do as they wish. The proposed amendments to DCR will also deprive the citizens of Mumbai of badly needed open spaces in a congested city. We maintain that the textile mill lands are different from other kinds of industrial land in the city, and require different treatment. We also feel that the amendments to the DCR do not constitute, as the Government claims, minor modifications in the Maharashtra Regional and Town Planning Act (1966). Any planning of 600 acres of land in the centre of the city constitutes a major issue. The modified DCR is an attack on citizens rights to space and workers rights to livelihood. The committee recently appointed by the Government of Maharashtra and chaired by Deepak Parekh to inquire into the mill lands issue is compromised by the interests of mill owners, builders and financial institution. Any representation by textile workers on the committee is conspicuously absent. We therefore demand that: 1. The land share of public housing and open spaces in mill lands, as per the 1991 DCR, should be restored and stringently applied, not just to vacant land or open spaces, but the total land area of the mills. It should be seen that the 50% share for public housing is maintained for textile workers, and the 2001 condition that workers families be given jobs should also be retained and implemented. 2. The Government must immediately freeze the permissions for building construction on the mill lands until the report of the Deepak Parekh committee is released and discussed with the various stake-holders, including mill workers and citizens groups. This should be implemented with retrospective effect, applying to permissions already given under the original 1991 and 2001 amended DCR. 3. The Government must disclose the list of the mills that have been already given or to be given clearance for development or redevelopment -- including intimations of dissaproval, commencement certificates, approved/proposed drawings, true 7/12 extract of land ownership, and related permissions -- along with their respective dates. 4. The Government must disclose, mill-wise, the list of the dues that have been paid to the workers of the respective mills (or are still to be paid) so that this amount can be juxtaposed against the profits generated through the development of the mill land. This will help to verify the stated rationale of the government that the increase in land share through the modification of section 58 is to pay the workers their dues. 5. The Government must publicly disclose all information on the land ownership, leasehold and/or freehold status of the land, and the terms and conditions/covenants of every mill. The terms of reference of the Parekh committee should be extended in order to obtain and analyse the rights associated with mill owners use of the mill lands. 6. For purposes of these demands and resolutions, the mill land being considered includes both the mills of the National Textile Corporation as well as private textile mills. We resolve: 1. To set up an independent committee/study group of citizens groups, workers organisations and labour and housing activists to investigate into these issues and publish a report on its findings into the full range of issues relating to the mill lands. This committee will access all documents and information relating to land ownership, lease and tenures, development plans and building proposals cleared under the original and modified DC Rules. The committee will represent independent views and have a wide terms of reference to include land ownership, urban planning and comprehensive integrated area development of the entire mill lands. 2. To distribute and publicise this set of demands and resolutions across a broad section of the public, civic organisations and social movements and to convene another meeting on the issue within a fortnight of this meeting. Signed by: Girni Kamgar Sangharsh Samiti Mumbai Study Group Chemical Mazdoor Sabha Workers Hind Textile Mills Girangaon Rozgar Hakk Samiti Majlis Hind Mazdoor Sabha Action for Good Governance and Networking in India ( AGNI) CRIT (Collective Research Initiatives Trust) Hindustan Siddhi Vinayak Kamgar Sangh Bombay First Textile Workers Federation of India Zhopadpatti Bachao Parishad LEARN and Aapli Mumbai Combat Law India Centre for Human Rights and Law (ICHRL) Mumbai Citizens Group FOCUS on the Global South Praja Foundation Yusuf Meherally Centre Mumbai Port Trust (MbPT) Dock Kamgar and General Employees Union Kamgar Aghadi CITU (Centre for Indian Trade Unions) NAPM (National Alliance of People’s Movements) CED (Centre for Education and Documentation) INTBAU India Nivara Hakk Sangharsh Samiti Mill Mazdoor Sangh _____ CRIT (Collective Research Initiatives Trust) Announcements List announcer at crit.org.in http://lists.crit.org.in/mailman/listinfo/announcer From tahir.amin at btopenworld.com Thu Feb 17 15:04:13 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Thu, 17 Feb 2005 09:34:13 +0000 (GMT) Subject: [Commons-Law] Bridging the digital divide Message-ID: <20050217093413.47116.qmail@web86111.mail.ukl.yahoo.com> Bridging the digital divide A $100 laptop aims to bring equal technology opportunities to children in the developing world. Clint Witchalls investigates Thursday February 17, 2005 The Guardian The British charity Citizens Online has an ambitious goal - they would like all schoolchildren in the UK to have their own laptop by 2010. Massachusetts Institute of Technology (MIT) boffins Nicholas Negroponte, Seymour Papert and Joseph Jacobson also share the mantra "one laptop per child", but they have a much more ambitious plan: to provide 100m to 200m laptops to schoolchildren in the developing world by the end of 2006. And how do they propose to do this? By making them very cheap - $100 (£53) per laptop, or $90 plus $10 for "contingency or profit". Negroponte, founder and director of the MIT's Media Lab, has long had an interest in providing information and communications technology (ICT) to developing countries. He has worked in Senegal, Costa Rica, India and, most recently, Cambodia, where he and his wife Elaine set up a school - the Elaine & Nicholas Negroponte School - to teach English and IT to schoolchildren. Their son also joined them and installed satellite and Wi-Fi links to connect the 25 Panasonic ToughBooks the children had been given. Having seen the changes that can be wrought with a bit of IT infrastructure, Negroponte wants to do more to bridge the digital divide between rich and poor by providing inexpensive computing to schoolchildren across the developing world. Google and chip maker AMD have committed $2m each to the project, and the MIT team is talking with Samsung, Motorola and News Corporation. They hope to have the first working prototype ready by September 1 and samples by the end of the year. However, some people argue that the digital divide is a symptom of inequality, not the cause of it. What people in the developing world really need are water, food, jobs, decent healthcare and sanitation. "Laptops, as we know them, are a luxury," agrees Negroponte. "Education is not. At $100, this is about learning and exploration, not giving kids costly tools and toys. Almost anything, from healthcare to food to birth control, can be addressed well, if not best, through education. "The deeper divides are unequivocally proportional to education. Peace will never happen as long as there is poverty. Poverty can only be eliminated through education." Papert, one of the world's leading theorists on child learning and inventor of the educational Logo computer language, says it is important to think about savings as well as costs. "Getting information online saves the cost of printing textbooks, and this is a case where what is cheaper is also better," he says. "A much bigger saving is the cost of the books that every student should have been given but only rich families could afford ... The computer can serve as a library, a laboratory and an art studio, saving the cost of these or making those that exist far more effective." Papert believes $100 laptops will also be invaluable resources for teachers, who constantly need to relearn. "The days when a future teacher could be trained to do everything that needs to be done in a career of teaching are over," he says. "The world changes too fast." So what will the children get for $100, considering a half-decent laptop can cost 10 times that much? The goal is to provide a laptop that does everything a conventional laptop can. It will have a 12in colour screen and run Linux and other open source software. It will be Wi-Fi and 3G-enabled, with many USB ports. The laptops will not have lots of storage space, and will not be hooked up via a conventional local area networks, but will rely on mesh networks, where one child's laptop will act as the print server, one the DVD player, and another the mass storage device. The most expensive part of any laptop is the screen, so instead of using expensive LCD displays, the MIT team is developing a flat rear-projection screen. The other alternative is based on electronic ink, invented by Joseph Jacobson, also from MIT. Screens are expected to cost less than $30. The price of software also needs to be addressed. Negroponte says PCs are "obese" with software and compares them to a large corporation, where half the people manage the other half. "A svelte Linux can do wonders for cost," he says. But surely a svelte desktop is cheaper than a svelte laptop? Desktops can be bolted down so no one can steal them, and you can repair one in a dusty shed with nothing more than a screwdriver. Laptops, on the other hand, need a clean environment, a lot of IT knowledge and special tools to repair them. While Negroponte agrees that desktops are cheaper, he says mobility is important, especially when it comes to taking the computer home at night. "Recent experiments in Maine schools have shown the huge value of using a laptop across all of one's studies, as well as for play," he says. "Bringing the laptop home engages the family." Similar experiments in the UK had to be abandoned when it was found that children who took laptops home after school became targets for muggers, but perhaps this will be less of a problem in rural China, which is Negroponte's first potential customer. This is not the first attempt to bring cheap computing to the developing world - many others have tried and failed. A $199 PC called iToaster was launched in June 1999, and flopped soon after. Netpliance's iOpener did the same, although these were aimed at US users. More recently, we have had the Simputer, a battery-powered handheld computer developed by the Indian not-for-profit Simputer Trust, and the Personal Internet Communicator (PIC), launched in October 2004 by AMD, which sells for $185. How many either of these will sell remains to be seen. More successful are those who give reconditioned PCs to the developing world. British charity Digital Links International has provided 15,000 computers to Africa, a continent where less than 2% of children leave school having touched a computer. The charity collects second-hand computers from corporations, refurbishes them, and sells them to schools for about $45. This is done through local distribution partners who provide training and support. "Obviously the ability to pay for ICT equipment is the largest barrier to access in developing countries, but there are other hurdles too," says Kate Woode, corporate development and donations coordinator for Digital Links. "This includes electricity, as the supply is often erratic or nonexistent, and transport, as often poor road quality results in a significant percentage of machines being damaged en route. "There is also a lack of trained technicians, especially in schools. Without sufficient training and support, IT equipment put in schools is often under utilised, and in some cases entirely redundant. Any meaningful roll-out of IT hardware must be accompanied by training to have any impact. This is even more important for open source software, as it is even more unfamiliar." But Negroponte is no ivory tower academic. He has had hands-on experience of providing ICT to schoolchildren in poor rural communities. To get over the power hurdle, the MIT team is looking into what it calls "parasitic power" - powering a laptop just by typing on the keys. The laptop will also be extremely robust - "almost military grade," says Negroponte - and will be simple enough so that a child can repair it. Flash memory will be used instead of a hard drive as it is much more durable. But Negroponte is unrepentant about using Linux and OpenOffice: "Open source is key because it's perfect in keeping with the ethos of a $100 people's computer." Geekcorps, a US not-for-profit organisation, builds Wi-Fi network relay stations in Africa using wire mesh, discarded plastic bottles and bamboo poles. They call them BottleNets. Wayan Vota, programme manager at Geekcorps, believes Negroponte is on the right track. "Laptops are portable, can be Wi-Fi meshed - each one is a transmitter and receiver of internet - and, with advances in technology, are getting smaller every day." However, Vota does not believe hardware costs are the show-stopper. "It's the actual connection to the internet node or backbone that is expensive. In the developing world, you have entrenched monopolies that are loath to do much past rake in high margins on substandard bandwidth." Negroponte says a great deal of the problem is regulatory and monopolistic, yet he is optimistic that these monopolies are slowly being broken down. He adds: "I would love to see the World Bank make telecom deregulation a condition of loans." The MIT trio is exploring whether some laptops can be independent elements of a phased array antenna, thereby acting as a satellite dish. In other words, is it possible for a group of laptops to have satellite access without a dish? Whether or not there is connection to an internet backbone, each village or town where these laptops are deployed can have their own Lan, using a mesh network. In fact, Taipei is installing a 10,000-point mesh network based on these Media Lab ideas. The $100 laptop is still a concept, with many hurdles to overcome. But with more than nine out of 10 people in the world having no internet access, let's hope the MIT team can succeed where so many others have failed. --------------------------------- ALL-NEW Yahoo! Messenger - all new features - even more fun! -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050217/ab8c259f/attachment.html From lawrence at altlawforum.org Fri Feb 18 13:45:59 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Fri, 18 Feb 2005 13:45:59 +0530 Subject: [Commons-Law] Creative Commons India Message-ID: Hi all We had a meeting at IIT Mumbai a few days ago, since IIT was interested in taking the initiatives with regard to CC India. This is just a small account of the meeting, and also about taking things forward. The IIT's or Indian Institute of technology (for those not brought up on Nehruvian modernity) are amongst the leading scientific and educaional institutions in India. The great thing is that there are a number of people who are very enthusiastic about the project here, and I think there can be no better Host institution than the IIT's. We had a meeting which involved Prof.Phatak, HOD of the Management school, Prof. Shiv Kumar HOD of Computer science etc and they really want to push the CC initiatives in India. Prof. Phatak in fact has suggested that they begin with a large number of multi media course content "E Guru series" being brought under the CC license, and they will leverage with the other IITs and other institutions across India on this matter. The idea is to have IIT Bombay as the Host Institution, and it was also felt that if IIT B was taking the responsibility then it also made sense for the Project lead to be someone form there, and Prof. Shishir Jha has agreed to take on the responsibility of being the Project lead. Many on the mailing list have been in touch with me about the CC Commons India, and you may feel free to contact Shishir (skjha at iitb.ac.in) for further details on issues of co ordination etc lawrence From jeebesh at sarai.net Thu Feb 17 21:13:24 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Thu, 17 Feb 2005 21:13:24 +0530 Subject: [Commons-Law] IMAGINING A WORLD WITHOUT COPYRIGHT Message-ID: <4214BB9C.7080202@sarai.net> Dear Jeebesh, I still remember our discussions more than a year ago in Amsterdam, also about copyright. I send you attached a new step in my analysis: /Imagining a World without Copyright/. I hope that you may enjoy it. A much shorter version of this text will be published next year in England. If you think that there might be other interested people, feel free to distribute the text to them. Best wishes, joost Prof. dr. Joost Smiers HKU/Utrecht School of the Arts P.O.Box 1520 3500 BM Utrecht the Netherlands tel. 00 31 30 2332256 e-mail: joost.smiers at central.hku.nl IMAGINING A WORLD WITHOUT COPYRIGHT The market and temporary protection a better alternative for artists and the public domain An essay Marieke van Schijndel & Joost Smiers Hard to imagine Some serious cracks are surfacing in the system of copyright, as we have known it in the Western world for a couple of centuries. The system is substantially more beneficial for cultural conglomerates than for the average artist; a situation that cannot last. Furthermore, it seems inescapable that digitisation is undermining the foundations of the copyright system. It must be acknowledged that several authors have recently presented analyses of the untenability of the contemporary system of copyright. Yet, most of their observations only allude to – but do not address – what we deem the most fundamental question of all: if copyright is inherently unjust, what could come in their place to guarantee artists – creative and performing – a fair compensation for their labours, and how can we prevent knowledge and creativity from being privatised (Bettig 1996; Bollier 2003: 119-134; Boyle 1996; Coombe 1998; Drahos 2002, 2002a; Frith 2004; Lessig 2002, 2004; Litman 2001; Perelman 2002; Vaidhyanathan 2003). It is time to move beyond merely criticizing copyright. The pressing question is: which alternative can we offer artists and other cultural entrepreneurs in rich as well as poor countries that benefits them, and that brings the increasing privatisation of creativity and expertise to a halt? Our goal in this essay is to develop such an alternative, and to move beyond any notion centred on private intellectual property rights. This text is an essay. We cannot erase the product of centuries of Western thought on intellectual property rights with a single stroke of the pen. It is hard to imagine for Western man that a world without copyright could still yield films, theatre productions, novels, music pieces, paintings, and multimedia spectacles; even though people born and living in non-Western cultures find this a lot less hard to believe (Boyle 1996: xiv)! In this essay we therefore present a thought-experiment. We begin by making a few observations, followed by a proposition, an alternative. Once we have arrived there, it becomes fruitful to put our ideas to the test. How would our alternative provide an income for artists, their patrons, and producers in various artistic industries and in various positions? It must be clear that we aspire only to sketch the contours of an approach that will require further development and study. Without any doubt, the analysis we present for copyright is transferable to other systems of intellectual property rights, such as patents and trademarks. These systems influence, as well, the creation, production, distribution and promotion of works of art of different ilk. Some observations A first observation must be that the present Western copyright system pays little attention to the average artist, especially those in non-Western societies. The system disproportionately benefits a few famous artists and especially a few major enterprises, but it has little to offer for most creators and performers (Boyle, 1996:xiii; Drahos 2002: 15; Kretschmer 1999; Kretschmer and Kawohl 2004: 44, Vaidhyanathan 2003: 5). The copyright system does enable a handful of cultural enterprises to dominate the market, and to withdraw substantive diversity from the public eye (Bettig 1996: 34-42, 103; Boyle 1996: 121-5; Coombe 1998: 144; Drahos 2002:ix-x, 74-84; Litman 2001: 14; McChesney 1999). Copyright has thus become a mechanism for a few cultural conglomerates to control the broad terrain of cultural communication. Something that has been derailed to such a large extent, and that hurts the interests of most artists and the public domain, can no longer be cut back to normal proportions. For most artists, the profits deriving from copyright do not form much of an incentive to create and perform artistic work, simply because they hardly receive the proceeds. This has been the case in the past, it still is the case in the present, and it holds for almost every culture. >From an historical perspective, we may note that the concept of private intellectual property rights has traditionally been absent from most cultures. Yet, there have always been artists who created and performed works (Bettig 1996: 25, 44, 171; Boyle 1996: 38-39). The incentive argument – artists stop their labours if they stop receiving copyright payments – therefore does not hold: ‘Copyright today is less about incentives or compensation than it is about control.’ (Litman 2001: 80) ‘Firms in the creative industries are able to ‘free-ride’ on the willingness of artists to create and the structure of the artists’ labour markets, characterised by short term working practices and oversupply, make it hard for artists to appropriate awards.’ (Towse 2003: 10) One may add to this observation that ‘value of copyright royalty rates is decided in the market place and it is therefore artists’ bargaining power with firms in the creative industries determines copyright earnings. Artists’ bargaining power is, however, considerably weakened by the persistence of excess supply of creative workers to the creative industries… As with artists’ earnings from other art sources, the individuals distribution of copyright earnings is highly skewed with a few top stars earning considerable sums but the medium or ‘typical’ author earning only small amounts from their various rights.’ (Towse 2003: 11) For non-Western countries, the Western intellectual property rights system is nothing but a straight-out disaster. Their knowledge and creativity is obfuscated from them, and they have to pay dearly to receive the fruits of these sacrifices in return. This even explains the unfavourable debt position of these countries to some extent (Boyle 1996: 34, 125-130, 141-142; Chomsky in Smiers 2003: 77; Coombe 1998: 208-247; Correa 2000; Grosheide 2002; von Lewinski 2004; Mitsui 1993; Perelman 2002: 5-7; Rifkin 2000: 229-232, 248-253; Shiva 1997, 2001). Let’s face the reality that digitisation is axing the roots of the copyright system (Alderman 2001; Lessig 2002; Litman 2001: 89-100, 112-116,151-170; Motavalli 2002; Rifkin 2000: 218-229; Schiller 2000; Vaidyanathan 2003: 149-184). By abolishing copyright, the process of creative adaptation will once again enjoy every imaginable opportunity. This is all the more interesting in the digital age. After all, digital sampling enables the production of creative works, much like those have always been produced. How? Indeed, by finding inspiration, themes, or certain forms of expression in works previously produced, long ago or yesterday. Digitisation enables this lending and borrowing of inspiration, and is helpful as well from another perspective. In the world of copyright there has always existed a bizarre distinction between an idea and the expression: however, in the digital age a work is no longer fixed and separating idea from expression is no longer possible. The artificial distinction and the endless discussions about it have become superfluous. Another observation, linked to what creative sampling makes possible, is that the philosophical basis of the present system of copyright is founded on a misunderstanding, notably that of the sheer boundless originality of the artist, regardless of whether he or she is a creator or a performer. But let us keep a keen eye on reality. One always builds on the labours of predecessors and contemporaries. Subsequent artists add something to the existing corpus of work, nothing more and nothing less. We may highly respect and admire those additions, but it would be incorrect to provide a creative or performing artist, or his or her producers, with an exclusive, monopolistic claim to something that has largely sprung from knowledge and creativity in the public domain, and that is indebted in important respects to the labours of predecessors (Barthes 1968; Boyle 1996: 42; 53-59). Of course, we are well aware that an artist receives a copyright for the addition he or she makes to what can be found in the public domain of knowledge and creativity. Again, this addition can be very impressive (or banal). But it is quite a stretch to extend him or her an exclusive, monopolistic property right for that addition, guaranteed until 70 years after his or her death, and which can on top of that be transferred to an individual or corporation that had nothing to do with the creative process in the first place. The credibility of the system really starts to fall apart when we realize that the author and his or her rightful claimants can forbid almost anything that resembles the copying of “their” work (Coombe 1998: 92-98). The development of the public domain of creativity and knowledge deserves a reappraisal. Besides, subsequent artists must be enabled to delve into that domain in order to find a supply of artistic materials that they can build on. That road will be closed when artistic materials from the present and past fall into private hands, something that is occurring to an increasing extent under the present system of copyright. This privatisation of our past and present cultural heritage is devastating for the further development of our cultural life (Locke in Boyle 1996: 9). In fact, an “author-centred regime can actually slow down scientific progress, diminish the opportunities for creativity, and curtail the availability of new products” (Boyle 1996: 119; also see: Perelman 2002: 7-9). For cultural conglomerates, which control the bulk of the property rights worldwide, the possibility to forbid reproduction is exceptionally interesting: it enables them to dominate broad areas of artistic expression in which no contradiction, no counter-melody, no counter-image, in short no dialogic practice is tolerated (Coombe 1998: 42, 46). Yet, we have to realize that “culture is not embedded in abstract concepts that we internalise, but in the materiality of signs and texts over which we struggle and the imprint of those struggles in consciousness. This ongoing negotiation and struggle over meaning is the essence of dialogic practice. Many interpretations of intellectual property laws squash dialogue by affirming the power of corporate actors to monologically control meaning by appealing to an abstract concept of property. Laws of intellectual property privilege monologic forms against dialogic practice and create significant power differentials between social actors engaged in hegemonic struggle” (Coombe 1998: 86). It is prerequisite for any democratic society that a surplus of opinionating and emotion-evoking claims can be contradicted (Bettig 1996: 103-106). The broad copyright as we know and have it virtually renders that difficult and sometimes impossible. Alternatives? After this summation of the fundamental shortcomings of the copyright system, it may not come as a surprise that we feel the need to investigate alternative ways to protect the public domain of knowledge and creativity, and to assure many artists and other cultural entrepreneurs a fair income for their labours. As stated, this type of investigation only happens too sporadically. Recently a few scholars and policymakers have presented alternatives to the system. But their proposals have many disadvantages and they therefore do not constipate a real alternative to the copyright regime. The most far-reaching reorientations have been systems like the General Public License and the Creative Commons (Bollier 2003: 27-30; 99-118; Boyle 1996: 132-133; Lessig 2002 and 2004: 282-6). The idea behind this approach is that A’s work must be available for use by others, without them being obstructed by prevailing copyright. In turn, the other cannot appropriate the work. Why not? The Creative Commons entails that A supplies some kind of public license for his or her work: go ahead, do with the work as you please, as long as you do not bring the work under a regime of private ownership. The work is thus subjected to a form of “empty” copyright. This “hollow” copyright constitutes the most extreme option the author has under the Creative Commons regime. More often, however, the author opts for the choice “some rights reserved”, for example that the usage of a work is restricted to not for profit activities. It is an uncertain form of contract law that will keep lawyers busy. The sympathetic aspect of Creative Commons-like constructions is that it becomes possible, to a certain extent, to withdraw oneself from the copyright jungle. It is of course always laudable to start a new world order on an island, and there is no scepticism in this statement. We hope that more and more artists will renounce the system of copyright that disadvantages them so badly, and begin hollowing it out by embracing the idea of a Creative Commons. Without any doubt this systems is helpful for museums and archives that wish to spread their stocks of cultural heritage to the public but also like to avoid it becoming copyrighted or used inappropriately by others. As long as the system of copyright is still in place, the Creative Commons appears to be a useful solution that may even serve as an exemplar. But there are some strings attached. The Creative Commons does not paint a clear picture of how a diverse set of artists from all over the world, as well as their producers and patrons, might generate an income. But we have to prepare an answer to that question. Most artists will not dare to put the existing copyright regime to rest until they have been offered a clear view of a better alternative – even though the present regime only has smoke and mirrors to offer. That is easily understandable. A second drawback of Creative Commons-like approaches is that they do not fundamentally question and challenge the copyright system. The Creative Commons License suggests that the author wants to exercise some form of control, nonetheless. Another quite essential objection to the Creative Commons-like approaches is that they involve only those artists who are willing to adhere to this philosophy. Cultural conglomerates, which have the ownership of big chunks of our cultural heritage from past and present, however, will not. This downgrades and limits the sympathetic idea of the Creative Commons. Not free of contradictions is the fact that one of the most outspoken advocates of Creative Commons, Lawrence Lessig, is a strong adapt of the idea that knowledge and creativity can be owned as individual property (Lessig 2004: XIV, XVI, 10, 28, 83). Isn’t the title of his 2004 book Free Culture a bit misleading? Below we will argue that there is much to say against this private property claim on knowledge and creativity. A second alternative for copyright is connected to different forms of art created and produced in a collective manner (regardless whether it concerns more traditional or contemporary works) as is the case in most non-Western countries. In those societies the individual approach of the Western copyright system does not fit the more collective character of creation and performance. If one stays within the paradigm of the private ownership of knowledge and creativity, it is obvious that a concept like collective ownership comes to mind. Is it not possible to grant so-called “traditional” societies a tool that resembles copyright, but is in fact collectively owned? Would this not enable them to protect their artistic expressions from inappropriate use and/or guarantee their artists an income? The problems for effectively introducing a system of collective intellectual ownership rights are abundant. For instance, one may wonder who represents the community and is able to speak on behalf of the community. It is not by definition the case that everybody agrees on how to deal with artistic creations of the past and present. Copyright is about the exploitation of works, but many people in those societies may consider this a blasphemy, or would not like to see their works being used in specific contexts. The appropriation of knowledge and creativity is something that even pinches in the Western world, and it all the more does so in countries where this strange system has never existed, and where artists use each other works, and so on and so forth, like what was the case in the Western world before the introduction of the copyright system. There is, thus, even without considering the position of Western cultural conglomerates reason to understand why the polite, weak and bleak trials of elaborating a collective intellectual property system have failed thus far. Is the tweaking of the current system a solution for the problems as we have described them? Several scholars, critical to the present copyright system, propose optimising it. Their contributions vary. Some argue for the reestablishment of the fair use principle, which has suffered enormously over the last decade, or making copyright solely applicable to real authors, creators and performers. Others favour a much shorter period of protection, for instance fourteen years. Again, others believe there is no real problem in the European context, because in those countries the collecting societies put aside a portion of the copyright earnings for cultural projects and their distribution scheme favours individual artists in comparison to the Anglo-Saxon copyright system. Unfortunately, it is unthinkable to bring the current system back to normal proportions, because it is not in the interest of the main partners of the system, the cultural conglomerates, to assist in this quest. On the contrary, they have been very eager and highly successful in extending and broadening the copyright system. Moreover, digitisation is greatly impacting the functioning of the system. At what point must a society decide that when almost everybody is participating in an “illegal” practice – like P2P music or film exchange – it can no longer be considered illegal (Litman 2001)? And even if the European collecting societies have a higher moral ground than those in the Anglo-Saxon world, even then the problem of the individual appropriation of knowledge and creativity, which is the basis of our critique of the system, continues to exist. In the next sections we address this issue more thoroughly. Artists, producers and patrons: entrepreneurs Before presenting our proposal we must observe that artists are inclined to sell their work on the market and – if it all works out – make a living for themselves. Artists have always been merchants and small shopkeepers. They live off an acquisitive audience that wants to admire, enjoy, and buy their produce. To that audience also belong institutional buyers like kings, churches, Maecenases, labour unions, banks, hospitals, and other societal institutions (Hauser 1972). This conclusion, as will be demonstrated further on in this essay, will provide us with something to go by while developing an alternative for copyright. Artists, as well as their producers and patrons, thus apparently are entrepreneurs. This requires a risk-prone mentality, and it involves competition, under the condition that real competition exists indeed, as much as possible for many artistic expressions and their artists. The observation that artists, and their producers and patrons are entrepreneurs makes one wonder what the decisive reason is for reducing the entrepreneurial risks of cultural producers, because this is precisely what copyright does. Copyright renders a product exclusive, and provides the entrepreneur with a de facto monopoly. This system of institutionally protected gifts is seemingly bizarre in an era in which even cultural conglomerates themselves herald the blessings of free market competition. Major entrepreneurs in cultural sectors bargain for ever-stricter intellectual property rights in the form of extensions and expansions of existing copyright legislation, but this is completely at odds with the so-called rule of the free market! We also observe the exact same phenomenon in the area of patent law and other intellectual property laws such as trademarks, database rights, plant breeder rights and design rights (Drahos 2002; Perelman 2002; Rifkin 1998, 2000; Shiva 1997, 2001; Shulman, 1999). Before we try our luck by presenting a new system, we must first identify the locus of the impulse to create. That brings us to the following summation, a three-pronged road. One possibility is that a work is being commissioned. The second option is that the artist him- or herself takes the initiative to make an artistic work, possibly in collaboration with multiple, differentially endowed creators and performers. Thirdly, a producer can be a binding factor and bear the responsibility and risk involved in an artistic venture. In all three cases – the initiative coming from a patron, someone who commissions; from one or several artists themselves; or from a producer – there is a person or an institution that intentionally makes itself responsible and accountable for creating or performing a certain artistic work. To be responsible and accountable not only implies undertaking a broad range of activities to give the artistic project momentum, but also to bear, amongst other things, the financial risks involved. The initiator then becomes an entrepreneur and bears the risk that unavoidably comes with entrepreneurship. In our alternative for copyright it is not the artist who takes centre stage, but the entrepreneur, regardless of whether he or she is an artist, a patron, or a producer. The solution: the market and temporary protected usufruct While recognizing the fact that artists, patrons and producers are cultural entrepreneurs, we find that they can be confronted with three types of situation, each of which grants a specific reaction or option. What are those three options in our proposed solution? First, cultural entrepreneurs experience a competitive advantage, for example by being the first to market a product. Ancillary forms of protection are then rendered unnecessary. Secondly, in some cases high risk and high investment are involved in the realization of certain creative works. Temporary protected usufruct is granted to offset market failure. Third, the market as of yet lacks the resilience to finance a product and there are many reasons making it desirable for it to flourish. Subsidies are than distributed. In all three cases or options the works fall immediately in the public domain. This is the key principle of our proposed solution. Let’s take a closer look at those three options. What are the contours of the system that we find worth exploring? The core of the matter is that we distance ourselves from the present system of copyright, as was probably clear by now. What does that yield? As stated, the protective corral of property rights that is artificially erected around a creative work will disappear. The consequence, thus, is that the work – regardless of whether it involves a (new) creation or a performance – will have to be marketed from the moment of its announcement onwards. We will nuance this position further on in the essay when we discuss the second option. What is essential is that the entrepreneurial patron, artist, or producer obtains a competitive advantage by creating or performing a work (Picciotto 2002: 225). This renders additional protection unnecessary. This is the first option. What we have in this first option is a first-mover advantage. The first person to bring a work to market can use the advantage to reap revenues. The entrepreneur thus has “lead-time.” What we propose is not completely new. In 1934 Plant stated ‘that copyright encourages moral hazard in publishers (firms in the creative industries) without sufficiently rewarding authors (creators) who supply the creative input. He believed that publishers should rely on the temporary monopoly of lead time to establish new products in the market.’ (in Towse 2003: 19) This time gives the first mover a lead over possible competitors, the opportunity to skim the market for the new cultural product, ask a good price for it, and thus earn a return on investment. After all, it will take several months before, say, the same play or music piece will see its opening night elsewhere or the same chair is eligible for production in another location. It should be understood that the work falls immediately in the public domain; thus can be used by others as well, and everybody is free to adapt this work creatively. The competitive advantage that most artists possess in one form or other is put at the very core of our new system. If such advantages are allowed and able to do their work, ancillary forms of protection, like copyright, will be unnecessary. The counter argument, however, might be that, with an eye on digitisation, reality is that lead-time is only a couple of minutes or perhaps hours (Towse 2003: 19)! Does this mean that there are almost no works that can benefit from a competitive advantage? We do not believe so. Apart from the first-mover advantage, many artists are able to add value or create advantages in other ways. In order to understand this, we should keep in mind, that cultural production and distribution will reshuffle considerably after the abolishment of copyright. For instance, in the field of music concerts and performances will become much more important, also as a source of income for the artists. Live, direct contact with an audience generates inimitable value. Performing qualities are even now, in the present era, of decisive importance for long and lasting careers of musicians. This is what gives them a good reputation. Reputation creates value. Reputation has a signalling effect. It indicates guaranteed quality. Customers are more loyal and are willing to pay higher prices for cultural products from artists with a good reputation and it makes them aficionados (Fombrun 1996). In the part of this essay where we test our proposals in the different fields of the arts – see below – we will come back to how cultural production and distribution will change in a world without copyright. But let us at this point stress that service qualities of artistic works will become much more important than the individual product. From what we have stated before about the philosophically doubtful concept of the originality of the author, it is clear that we claim that any artistic creation or performance belongs to the public domain. It is derived from the commons, based on the works of predecessors and contemporaries, and therefore, from its moment of conception onwards it takes its place in the public domain. We use the concepts public domain and commons without distinction. However, we know that in legal traditions there may be differences between the two concepts. We define the public domain or the commons as the space in any society that belongs to all of us and can be used by all of us. It is a misunderstanding to think that the commons, or the public domain, is an unregulated space. Of course not: always in history and in all societies those common spaces have been regulated one way or another, for example on the conditions of its usage. In our alternative we return to the commons what has always belonged to it – no more and no less. We give back to all of us what has been privatised in the fields of creativity and knowledge in the Western world over the last centuries (Hemmungs Wirtén 2004: 133,4). The second option takes into consideration that sometimes the realization of a certain work requires a rather substantial up front investment. Think of movie productions, for example, which can easily rake up several million euros in costs. Another example is writing a book; an author has to work on such a large project for a considerable period of time, but the revenues will not begin flowing until (much) later. It could also be that the risk of an undertaking is too great to be borne privately. Often high investments, high risks and uncertainty go hand in hand. This can lead to what economists call ‘market failure’ (Towse 2004: 56). This is an economic condition under which competitive markets have difficulty developing. State intervention is then granted. In these special cases, in which the process of selling is time consuming, or must consist of multiple transactions before an agreeable income has been reached, one can think of a temporary protected usufruct for the person taking the entrepreneurial risk. The cultural entrepreneur is offered temporal protection to harvest the fruits of his or her work. However, no private property emerges, as was the case under a copyright regime. The concept of usufruct is better known in societies under civil law than in those that are governed by common law, like the Anglo-Saxon parts of the world. Characteristic for usufruct is that one does not have the ownership of an item; however, one is entitled to the usage of the fruits of the item. If the item is, say, a house, the entitlement could be, for instance, the usage of the house without owning it. The person that holds usufruct is, for example, allowed to live there for free or to receive the proceeds of any rental activity. In our case, the item might be a book; from the moment of its publication it belongs to the public domain and the holder of the usufruct is entitled to the takings and receipts of the book. Under the present system of law, usufruct can only emerge when it is derived from an ownership title. What we envision is that the creative work, as we will argue below, exists only in the public domain, its ownership is shared amongst all, and thus belongs to the commons. Whoever enjoys the temporary usufruct of a certain artistic work, has thus received it from the public domain. The usufruct keeps unimpeded the freedom of everybody to adapt works of art – creations and performances – in a creative manner. The technical details concerning the implementation of this matter still will have to be worked out. De facto, the temporary usufruct implies that the costs of preparing the work, including the artist’s wage, are spread out over a number of customers. But we will have to apply strict boundaries to the timeframe over which this applies. Hence, we speak of a temporary usufruct. In terms of its scope and duration, protection will be less than under present copyright regimes. In our approach an artistic work, whether creation or performance, immediately enters the public domain from its moment of conception onwards, as has been stated before; or better yet remains in it, because it derives from it to a large extent. Only, it may happen that the usufruct is protected for a certain period of time, to make the work profitable for the creator, performer, producer, or patron. At present, we do think of a period not extending beyond a year. A lot of economic research is required to possibly refine this period of temporarily protected usufruct, depending on the specific artistic discipline. However, this term of one year is not picked randomly. ‘Of all the creative work produced by humans anywhere, a tiny fraction has continuing commercial value.’ For instance, ‘most books go out of print within one year.’ (Lessig 2004: 134 and 225) This market reality supports our proposal of a strict time frame for protection. Of course, it might happen that even this temporary usufruct does not provide enough perspective on the ability to break even on certain artistic creations and performances. And with this we arrive at our final and third option: subsidies. It may happen that the market as of yet lacks the resilience to finance a certain type of artistic work but that there are various reasons making it socially desirable for this work to bloom and become available (for the sake of cultural diversity or because the public is still developing a taste for certain forms of expression, for example). In that case it is important that governments use subsidies and other facilities to enable the creation, performance, and diffusion of such works, for shorter or longer periods of time. In case of financing by the government, the work immediately becomes part of the public domain. After all, it appears absurd that publicly financed productions can become the exclusive property of a person or organization, as is presently the case in many countries with programs developed by their public broadcasting corporations. Commenting upon our alternative Is what we propose not some kind of dressed-down version of the present copyright system? One could say that. But there are remarkable differences between the copyright approach and our alternative, in which we first let market processes take their course, perhaps followed by a form of limited protection. First, under the regime of intellectual property rights, a protective shield of copyright becomes affixed to an artistic work by definition, from its moment of inception onwards. This does not hold true for our alternative, on the contrary. The maker, producer, or patron has a competitive advantage in the market by being the first to offer a certain kind of product: let markets be markets! Second, if it is somehow necessary to offer a certain kind of protection, as when a work could not be made profitable by any other means, then that protection will remain incomparably less elaborate in terms of its scope and duration than the sheer boundless system of institutionalised gifts with which the copyright system presently spoils the “holder of an intellectual property right.” A period of about a year of usufruct is something quite different than 70 years after the death of the author, and also in the case of neighbouring rights the duration of the protection may be called generous. Under the present system of copyright, creative adaptation is at risk of being interpreted as a wrong and of being fined by the courts, so the scope and duration of the protection are immensely important. In our approach, creative adaptation is instead applauded and encouraged. There is also a third reason as to why what we propose is completely different from copyright. Our alternative redefines ownership and property of creativity and knowledge. Creative works are not owned in the same way as, for instance, a table. A table is the property of person A, but not at the same time also of person B, unless they are married. But this is not the case with artistic creativity and knowledge. After its usage by someone it has not been exhausted. It is a public good. That is as we have argued before, why those works of the intellect and of the creative mind belong to the public domain. Strategically it is important to underpin this public character of knowledge and creativity time and time again. Jack Valenti, the former president of the Motion Picture Association of America, once unhesitatingly said: ‘Creative property owners must be accorded the same rights and protection resident in all other property owners in the nation.’ (in Lessig 2004: 117) This quote makes clear why it is necessary to make a distinction between knowledge and creativity at one side and the ownership of, for instance, a house at the other side. They are not the same and should not be treated the same. Result: a new cultural market and a level playing field With our new system a new cultural market will emerge. The first observation is that with the abolition of copyright cultural conglomerates will lose their grip on the agglomeration of cultural products, with which they determine the outlook of our cultural lives to an ever-increasing extent. Because what will they lose? They have to give up control over huge chunks of the cultural markets. They lose the monopolistic exclusivity over broad cultural areas because everyone is allowed to exploit artistic materials that are not protected by temporary usufruct and absolutely no limitations are put on creatively adapting works of art. With these new conditions, the rationale is then lost for cultural conglomerates to make substantial investments in blockbusters, bestsellers, and stars. After all, by making creative adaptation respectable again and by undoing the present system of copyright, the economic incentives to produce at the present scale will diminish. However, it will not be forbidden for a cultural entrepreneur to invest millions of dollars or euros in, for instance, a film, game, CD or DVD. Of course not, but the investment will no longer be made under an endless wall of protection. There will once again be room to manoeuvre in cultural markets for a variety of entrepreneurs, who are then no longer pushed out of the public’s attention by blockbusters, bestsellers, and stars. Those plentiful artists are more likely to find audiences for their creations and performances in a normal market that is not dominated by a few large players. There is not a single reason to believe that there would be no demand for such an enormous variety of artistic expressions. In a normalized market, with equal opportunities for everyone, this demand can be fulfilled. This increases the possibility that a varied flock of artists would be capable of extracting a decent living from their endeavours. A second observation is about cultural adaptation and how the market should be regulated with respect to fraud and plagiarism. We stress the fact that we do not like theft. We of course do not propose that X can attach his or her name to Y’s book or film, suggesting to be the author of that work. That is plain misrepresentation or fraud. If that is found out, and that is bound to happen sooner or later, than the lazy fraudster will receive his or her fair penalty in the court of public opinion; we do not need a copyright system to accomplish that. It is up to all of us not to be afraid to publicly accuse artists of misrepresentation or fraud. This will only happen if we are culturally alert, and we have to be if we want to do without judgments of the courts, which have made us culturally lazy in the past! We should critically discuss what we consider culturally inappropriate use. What we have suggested thus far is that it is quite feasible to have a flourishing cultural domain without the existence of a copyright system, while at the same time many artists in the Western and non-Western countries alike can make a reasonable income from their labours. However, it is evident that the completely new approach as we propose it does not immediately eradicate all conceivable problems. With this we come to our third observation. If cultural enterprises can no longer control the market with copyright in hand, they must resort to a second protective mechanism, which they will then attempt to apply with even greater force than is presently the case. That is the far-reaching control over distribution and promotion of cultural expression they possess and wield. This too must be limited with metes and bounds. After all, from a democratic perspective it is impermissible that a limited number of cultural giants is able to determine the contents of artistic and cultural communications, using traditional as well as new media (Smiers 2003). Democracy is not the privilege of a few cultural conglomerates. It is a necessity to use ownership and content regulations to organize the cultural market in such a way that cultural diversity gets the best possible chance. First of all, there should not be dominant modes of distribution. It cannot be the case that a single owner dominates, controls, or concerts the market for music, films, or books. Vertical integration and other forms of cross ownership must be condemned. Content regulations may take the form of diversity prescriptions. That is to say: diversity in terms of genre, musicians’ backgrounds, and geographical diversity, and the latter representing diversity from the home country, neighbouring countries, and many other parts of the world. Of course there will be outlets specializing in a certain genre that want to be known for it. These too will be subject to diversity prescription, albeit within that genre (Smiers 2004). This type of regulation does not take anything away from a free market economy. To the contrary, these rules, while in need of further elaboration, serve to create a free market, or differently put, to “normalize” the market and to bring about a level playing field. No one should be able to dominate the cultural market or to have such a strong position that cultural diversity will be suppressed, pushed aside, or taken away from the public attention. This demands some regulations: on the one hand the elimination of the control mechanism “copyright” and on the other hand the instalment of some regulations concerning ownership and content that protect and promote the flourishing of artistic diversity. Let’s focus now on the main point of attention of this essay, it must be clear that abolishing copyright will benefit the public domain in all its keys, colours, movements, wits, and images! But what does it yield for artists and those who do organizing work for them? Let us see how this takes shape per discipline of the arts, and per professional activity within them. Putting it to the test *** Music If the present system of copy and neighbouring rights were suspended, how would musicians generate an income? We have to keep in mind, of course, that for many of them copyright was never, or hardly ever, a serious source of revenues. What we propose here applies without restrictions to all performing artists, in all walks of musical life and all genres, from popular to world music, and from improvisation to composed materials. A bit further on in the text we will reflect on the situation of those creating new works. The background assumption is that especially performing artists are well equipped to add value or generate a competitive advantage. Neighbouring rights nevertheless offer a disproportionate protection against the performance and interpretation of one’s own or somebody else’s work. Many musicians are experts in personifying their relationship with an audience. Direct contact with audiences generates a substantial part of the income of many musicians. This way they build their own, unique market niche. This means, for example, that many musicians go on tour to give concerts and thus develop a close relationship with their audience. Their promotion is therefore oriented towards cementing that relationship. Their work may be embedded in merchandising activities of all sorts, such as t-shirts, books, brochures, et cetera. They can also offer their work via the Internet to music lovers worldwide. Several options come to mind: one can download only after paying a small amount, or one can download at all times, and subsequently hope that the fan will pay. A real fan will be more inclined to do this than a coincidental passer-by. Record sales can also be a considerable source of revenues. Many people do not want to download music, or they want to get hold of the specially designed compact disk cover with the accompanying information. By paying special attention to the design of the cover, or by adding a lot of information, value is created. Records can be sold at concerts, in stores of various shapes and kinds, or ordered via the Internet. What is then to become of the record companies? In principle, musicians do not need record companies, at least not in the conventional meaning of the word. With the latest digital technology, they can make magnificent recordings and distribute them via the Internet or on compact disks. If they still feel the need to use an intermediary, they can commission dedicated companies to perform various kinds of services, like making digital recordings, and/or produce and distribute a compact disk, and/or market the recording worldwide in digital format. It is very imaginable that we will see the emergence of many new enterprises that offer services to artists. A lot of music finds its way to audiences via radio and television. Must broadcasting corporations, public or private, pay a fee for this content? The first impulse is of course to answer in the affirmative. We still live in the matter-of-fact world of copy- and neighbouring rights. Yet, there is a lot to say in favour of not charging fees, while bringing many artists in a financially better position. How does this add up? When the diversity of supply blossoms, as was described above, the air will be filled with many different kinds of music, supplied by many musicians. While this is culturally exciting in and of itself, it also yields a lot for artists. Not by being played by radio or television stations, but by familiarizing many different audiences with their existence – because they can be heard over the radio, and seen on television. Those audiences will visit their concerts, book them for festivals and parties, and obtain works from their favourite artists over the Internet and pay them for it. The new situation opens up the possibility that many artists will benefit from the latent demand for a diverse offering of cultural products, and find and develop their own audience. Those audiences guarantee that artists will be able to make a decent or even a good living. After all, they are involved with “their” artists. *** Composers, playwrights, choreographers Above we have primarily put performing musicians in the spotlight (and focused on abolishing neighbouring rights). For many kinds of music there is no distinction between creators and performers. Those musicians do both; they perform their own creations. They earn their living in the way described above. Still, there are many creators in the theatrical and musical arts that do not perform their own compositions, plays, and choreographies. This holds true for numerous composers, playwrights, choreographers, and related others. How can we imagine them earning a good living in absence of the present system of copyright? It may be that one him- or herself takes the initiative to compose, or that a work is being commissioned. We touched upon that matter above, when we described the new system, but it is relevant to elaborate upon the principle here, now that we have taken on a concrete exemplar. The core of the matter is: how can an artist abstract an income from his or her work? When the work is commissioned, the answer is clear. The patron pays, and that is all that matters to the artist. So what does the paying patron receive? A beautiful (or not) piece of work, and the opportunity to take it to the stage. What is essential is that the patron obtains a competitive advantage from the act of commissioning a work, whereas the work itself becomes part of the public domain again after its first performance. We deliberately say “again,” because the work was largely derived from the public domain in the first place. So everyone who wishes to do so can take the composition, choreography, or play into production, free of charge. It also means that no one else is exclusively entitled to that work, or could obtain such a title. Many different versions of a piece can thus simultaneously be sung or played. Because of this lack of exclusivity, it all comes down to performing so attractively for different audiences that they want to come see it. If that happens, the composer, choreographer, or playwright has a good chance of receiving another commission, and so on and so forth. In many cases there is no commission at all, and the composer, playwright, or choreographer initiates the creative process autonomously. This happens more with composers and playwrights than with choreographers, who are usually more dependent on commissions and planned performances. By taking an initiative the creative artist takes the entrepreneurial risk. That sounds nice, but it is not unthinkable that this type of artistic enterprise represents a considerable investment for a one-man (or one-woman) shop or freelancer. Because it is important to encourage composers or playwrights to make this investment, it is fair to give the creative artist a temporal usufruct, which extends over a certain period of time. Several transactions must be undertaken to earn back the relatively large initial investment, for example a year’s cost of living. This may encompass, for example, three stagings or performances. The usufruct is also temporarily restricted, notably: to one year. Of course, creative adaptation is again most welcome (the moral right no longer exists under the new regime). We make note of that because in some cases, as happens with musicals, for example, highly detailed directing concepts are a compulsory element of the sales transaction. It is unthinkable that this practice will persist, because commissioned musicals too will be absorbed by the public domain again after their first performance, making them available for creative adaptation. When the writer and/or composer have initiated the musical him- or herself, the work also becomes part of the public domain again quickly, notably: when the period of usufruct expires. The free reign of creative adaptation is left unimpeded even in this period. *** Books Most books these days still appear on paper. While pondering about how writers can earn an income in a world without copyright, we have to take into account that digitisation has also entered the world of books and is likely to increase. Essentially, we have described a similar situation above when we analyzed the case of music. The music piece, and in this case the book, can be downloaded in return for some form of compensation, or free of charge, in the hope that a payment will still be made. The writer either organizes all of this him- or herself, or hires a specialized intermediary, similar to what has been discussed in the case of music. This phenomenon may crumble the power of huge publishing houses. Next, the book on paper. We must take into account that author and publisher enjoy a competitive advantage. They are the first to take a specific book to the market, which gives them a certain period of time to rebalance expenditures and revenues. Writing a novel does however come with relatively large initial investments, which cannot be recouped with the first imprinting alone. Selling a hundred copies in the first few weeks will not adequately compensate the author for his or her labours. A certain amount of copies thus has to be sold, and this will take a certain stretch of time. The most obvious criterion for temporary protected usufruct is to offer the person taking the entrepreneurial risk, author or publisher, a certain period to bring the book to financial maturity. As was the case on previous occasions, our thoughts go out to a period of one year. It happens to be an interesting fact that authors reap ancillary benefits, next to their primary income from book sales, from contributions to newspapers and magazines, from literary readings, and from other public appearances. In this respect they are quite comparable to performing musicians. The difference, however, is that these activities have a little less in common with their primary activities than what happens to be the case with musicians. That is why we opted for a different regime. *** Film In principle, we propose, must filmmakers too profit from the competitive advantage they enjoy when bringing their product to market first. Reality is different, of course. Even a low-budget movie costs at least a million euros or dollars. The average movie is incapable of recouping the money invested in it on the basis of first-mover advantages alone. On top of that, it happens to be very easy to copy a movie, which makes it very difficult to make this type of product profitable. This makes it evident that a temporarily protected usufruct should be introduced in the domain of film. The most important source of revenues is therefore the temporarily protected usufruct of the film producer. The film producer too must do with a usufruct that last only a year. It should be possible to recoup the costs of a film within that year. He or she can use that year to offer the film via all imaginable media, including digitally via the Internet. But it is also well imaginable that governments endow filmmakers with subsidies. It may occur that the market is insufficiently developed to support a large diversity of, say, European films. Cultural-political arguments may also support measures like tax reliefs. Finally the government can contribute to the creation of efficient networks for the distribution of a variety of films. Experience teaches us that distribution is more difficult than production. An individual producer is bound to be incapable of developing an effective distribution network for a variety of films. There is a role here for governments to support the realization of such networks and to contribute to them in their initial phases. *** Design disciplines and visual arts In the area of visual culture, the question relevant for determining whether the creators of a work of art will be able to extract a decent living from their labours is as follows: is the work a unique piece or is it a replica? Many visual artists make unique works and figure out for themselves how they will go about doing so. Their main source of income is the sale of this unique work. The orthodox copyright system is less relevant here, and the same holds true for the new system sketched above. Apart from that, subsidy instruments will remain relevant for protecting artists from the whims of the market; they provide the foundation for a process of continuous, emergent creation. Nevertheless, artists will have to be stimulated and trained to commit various audiences to themselves, thus providing their income. There is no room for derivative rights. Creative adaptation too must be applauded. This may imply that similar looking pieces will enter the market, just like what has always been the case in all cultures. Where a work has been commissioned or ordered, the situation is also clear. The work, regardless of whether it involves a design or painting, is created and delivered against the agreed-upon price. It should be clear that creative adaptation is allowed to take its course here too. It can obviously not be the case that, say, an architect is allowed to claim: this realized building is my design and no one is allowed to change it without my permission, or – at the opposite end of the spectrum – no one is allowed to imitate it. The reality is, in this case, that the architect has been paid for his or her endeavours. After that the building will once again become part of the public domain, and may be altered or imitated if so desired. Especially the products of the design professions are easily replicable and imitable. But the maker, or the buyer of the work, enjoys a competitive advantage. He or she is the first to market the product manufactured according to a certain design. Let markets be markets; additional forms of protection are unnecessary. Discussion and conclusion Admittedly, it may take a while to get used to letting go of the system of copyright. It urges us to make a mental and an economic transition, but this is worth the trouble in every conceivable way. Many practical matters still need to be solved with respect to the usufruct model. Should a temporary protected usufruct be granted automatically or should we implement a licensing system? Following some of our test cases, it seems logical to automatically grant some types of artistic product (for example films and books) usufruct. But what are the drawbacks of this approach and should the duration of protection for all fields of the arts be the same? Other questions that come to mind are: is there still a role to play for the collecting societies and what is the effect of the one-year usufruct on the product life cycle of artistic products? In this essay we have presented a thought-experiment. We urge everybody to participate in our quest. Who should, for instance, be our strategic partners in our journey into a world without copyright? What is at stake is to once again begin respecting the public domain of creativity and knowledge. Our main concern is providing the makers of artistic work with a decent income and sufficient possibilities to bring their work, in all its diversity, under the attention of many audiences without being pushed from the market by a few oversized cultural conglomerates. The system of copyright has existed for over a century in Western societies. It has been long enough. It is not equipped to withstand the digitisation that has once again supplied artists with a magnitude of entrepreneurial freedom. Profit from it! References Alderman 2001, John, Sonic Boom. Napster, P2P and the Battle for the Future of Music, London (Fouth Estate) Barthes 1968, Roland, La mort de l'auteur, Manteia, no. 5, 4e trimestre 1968. Published as well in: Roland Barthes, Oeuvres complètes, Tome II, 1966-1973, Paris 1994 (Editions du Seuil): 491-495 Bettig 1996, Ronald V., Copyrighting Culture. 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Authorship, Intellectual Property Rights, and the Boundaries of Globalization, Toronto (University of Toronto Press) Kretschmer 1999, Martin, Intellectual Property in Music: A Historical Analysis of Rethoric and Institutional Practices, special issue Cultural Industry (ed. P. Jeffcutt), Studies in Cultures, Organizations and Societies, 6: 197-223 Kretschmer and Kawohl 2004, Martin and Friedemann, The History and Philosophy of Copyright, in: Frith and Marschall (2004): 21-53 Lessig 2002, Lawrence, The Future of Ideas. The Fate of the Commons in a Connected World, New York (Vintage) Lessig 2004, Lawrence, Free Culture. How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, New York (The Penguin Press) Lewinski 2002, Silke von, Indigenous Heritage and Intellectual Property. Genetic Resources, Traditional Knowledge and Folklore, The Hague (Kluwer Law International) Litman 2001, Jessica, Digital Copyright, Amherst (New York/ Prometeus Books) Macmillan 2002, Fiona, Copyright and Corporate Power, in Towse 2002: 99-118 McChesney 1999, Robert W., Rich Media, Poor Democracy. Communication Politics in Dubious Times, Urbana and Chicago (University of Illinois Press) Mitsui 1993, Tôru, Copyright and Music in Japan. A Forced Grafting and its Consequences, in Frith 1993: 125-145 Motavalli 2002, John, Bamboozled at the Revolution. How Big Media Lost Billions in the Battle for the Internet, New York (Viking) Perelman 2002, Michael, Steal This Idea. Intellectual Property Rights and the Corporate Confiscation of Creativity, New York (Palgrave) Picciotto 2002, Sol, Defending the Public Interest in TRIPS and the WTO, in Drahos 2002a: 224-243 Rifkin 1998, Jeremy, The Biotech Century. Harnessing the Gene and Remaking the World, New York (Jeremy P. Tarcher/ Putnam) Rifkin 2000, Jeremy, The Age of Access. The New Culture of Hypercapitalism, Where All of Life is a Paid-for Experience, New York (Jeremy P. Tarcher/ Putnam) Schiller 2000, Dan, Digital Capitalism. Networking the Global Market System, Cambridge (MA)/ London (The MIT Press) Shiva 1997, Vandana, Biopiracy. The Plunder of Nature and Knowledge, Boston MA (South End Press) Shiva 2001, Vandana, Protect or Plunder? Understanding Intellectual Property Rights, London (Zed Books) Shulman 1999, Seth, Owning the Future, New York (Houghton Mifflin Company) Smiers 2001, Joost, La propriété intellectuelle, c'est le vol ! Pladoyer pour l'abolition des droits d'auteur, In Le Monde Diplomatique, septembre 2001. Smiers 2002, Joost, The abolition of copyrights: better for artists, Third World countries and the public domain, in Towse 2002: 119 – 139 Smiers 2003, Joost, Arts Under Pressure. Promoting Cultural Diversity in the Age of Globalisation, London (Zed Books) Smiers 2004, Joost, Artistic Expression in a Corporate World. Do We Need Monopolistic Control?, Utrecht (HKU/ Utrecht School of the Arts) Towse 2002, Ruth (ed.), Copyright in the Cultural Industries, Cheltenham (Edward Elgar) Towse 2003, Ruth, Copyright and Cultural Policy for the Creative Industries, in: Grandstrand 2002: 1-10 Towse 2004, Ruth, Copyright and Economics, in: Firth and Marshall (2004): 54-69 Vaidhyanathan 2003, Siva, Copyrights and Copywrongs. The Rise of Intellectual Property and How It Threatens Creativity, New York and London (New York University Press) about the authors Marieke van Schijndel is policy advisor and has worked for various cultural organisations in the Netherlands. Last year she received her Master of Business Administration from the John Molson School of Business (Canada) and she currently works for the Mondriaan Foundation, an organisation that provides financial support to projects and activities in the field of art, design and heritage. This essay is written à titre personnel. ( HYPERLINK "mailto:m_vanschijndel at hotmail.com" m_vanschijndel at hotmail.com) Joost Smiers is professor of political science of the arts at the Utrecht School of the Arts, the Netherlands. He is author of Arts Under Pressure. Promoting Cultural Diversity in the Age Globalization (London 2003, Zed Books); and of Artistic Expression in a Corporate World. Do We Need Monopolistic Control? (Utrecht 2004, Utrecht School of the Arts). ( HYPERLINK "mailto:joost.smiers at central.hku.nl" joost.smiers at central.hku.nl and HYPERLINK "mailto:joost.smiers at planet.nl" joost.smiers at planet.nl) The authors wish to thank the following friends and colleagues for their kind and critical comments to earlier drafts of this article: Maarten Asscher, Lee Davis, Christophe Germann, Willem Grosheide, Giep Hagoort, Eva Hemmungs Wirtén, Pursey Heugens, Raj Isar, Lina Khamis, Jaap Klazema, Gerd Leonhard, Helle Porsdam, Alan Story, Ruth Towse, David Vaver, Catarina Vaz Pinto , Roger Wallis, Lior Zemer, as well as the Research Group Arts & Economics at the Utrecht School of the Arts (the Netherlands), the Copy/South Research Network and the AHRB Network on New Directions in Copyright Law (London). . From tahir.amin at btopenworld.com Fri Feb 18 10:31:09 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Fri, 18 Feb 2005 05:01:09 +0000 (GMT) Subject: [Commons-Law] EU software patent law faces axe (BBC News 17 Feb) Message-ID: <20050218050109.44780.qmail@web86110.mail.ukl.yahoo.com> EU software patent law faces axe The European Parliament has thrown out a bill that would have allowed software to be patented. Politicians unanimously rejected the bill and now it must go through another round of consultation if it is to have a chance of becoming law. During consultation the software patents bill could be substantially re-drafted or even scrapped. The bill was backed by hi-tech firms that said they needed the protections it offered to make research worthwhile. Patent problems Hugo Lueders, European director for public policy at CompTIA, an umbrella organization for technology companies, said only when intellectual property was adequately protected would European inventors prosper. He said the benefits of the bill had been obscured by special interest groups which muddied debate over the rights and wrongs of software patents. Other proponents of the bill said it was a good compromise that avoided the excesses of the American system which allows the patenting of business practices as well as software. But opponents of the bill said that it could stifle innovation, be abused by firms keen to protect existing monopolies and could hamper the growth of the open source movement. The proposed law had a troubled passage through the European parliament. Its progress was delayed twice when Polish MEPs rejected plans to adopt it. Also earlier this month the influential European Legal Affairs Committee (JURI) said the law should be re-drafted after it failed to win the support of MEPs. To become law both the European Parliament and a qualified majority of EU states have to approve of the draft wording of the bill. The latest rejection means that now the bill on computer inventions must go back to the EU for re-consideration. --------------------------------- ALL-NEW Yahoo! Messenger - all new features - even more fun! -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050218/1fc387de/attachment.html From pi at attacksyour.net Fri Feb 18 15:23:54 2005 From: pi at attacksyour.net (martin pichlmair) Date: Fri, 18 Feb 2005 10:53:54 +0100 Subject: [Commons-Law] Open source history - reply to Martin In-Reply-To: <20050216171417.458ED131AB@webmail221.herald.ox.ac.uk> References: <20050216171417.458ED131AB@webmail221.herald.ox.ac.uk> Message-ID: <08d78a583adb194098edc0fce69804ed@attacksyour.net> dear sudhir, aarathi, dev, jayna, matthew, lawrence et al., thank you all for pointing me to this great resources. especially cases like the cornish steam engine are so pictorial that they are very well suited for triggering thoughts in the minds of students. maybe i should release my teaching materials (slides) under a cc license... lg martin From prabhuram at gmail.com Fri Feb 18 16:30:10 2005 From: prabhuram at gmail.com (Ram) Date: Fri, 18 Feb 2005 12:00:10 +0100 Subject: [Commons-Law] Norms for software patents to be finalised Message-ID: <68752c9f0502180300297fab0e@mail.gmail.com> Norms for software patents to be finalised Business Standard The government will finalise detailed guidelines for patent examiners over the next one month specifying the conditions under which software, polymers and other chemicals can be patented. "There is a general notion that software can be patented. That is not true. You cannot patent software. However software embedded in hardware can be patented. All such issues are sought to be clarified through these working guidelines for the patent examiners which will be put up on the web once they have been finalised," an official told Business Standard. Officials said that the first draft had been prepared and was being discussed by the ministry officials with legal experts and industry representatives. The guidelines would be finalised in the next one month. The government has already hired 175 patent examiners to deal with the load of patent applications. The modernisation of patent offices is underway and the new patent office in the capital will be inaugrated next month. Along with patent, work on the other areas of intellectual property like Geographical indicators (GI) is also picking up pace. The government has granted GI on six products including chanderi sarees and Darjeeling tea and is considering proposal to grant GI on 30 other items, officials said. Earlier today Commerce and Industry Minister Kamal Nath said that the new modernised product patent regime will help attract more foreign direct investment and make India a new destination for contract manufacturing and contract research. "The modernised patent law is expected to provide a secure and conducive environment to investments. India could be new destination for contract manufacturing and contract research since India has cost and capabilities advantages," Nath said in his address to the National Seminar on Promotion, Protection and Enforcement of Intellectual Property Rights organised by his ministry in association with the World Intellectual Property Organisation (WIPO) and Ficci. The minister, whose speech was read out in his absence, said that the government had undertaken an ambitious programme to modernise the intellectual property rights administrative infrastructure with a view to making the system efficient, IT-enabled and more user-friendly From prabhuram at gmail.com Fri Feb 18 16:45:28 2005 From: prabhuram at gmail.com (Ram) Date: Fri, 18 Feb 2005 12:15:28 +0100 Subject: [Commons-Law] The Reality of Open-Access Journal Articles Message-ID: <68752c9f050218031514478ee8@mail.gmail.com> The Reality of Open-Access Journal Articles By ANDY GASS and HELEN DOYLE Although reasonable people can undoubtedly disagree about aspects of open-access publishing -- generally speaking, making journal articles available online at no charge -- one point is beyond dispute: The concept is no longer merely a theoretical possibility. It is time to move beyond rehashing tired arguments about whether open access poses a threat to publishers, professional societies, or research budgets. We should begin to discuss how best to use what open access gives us: the unfettered availability of scholarly literature. The strongest evidence that open access to peer-reviewed articles is here to stay, at least in the life sciences, comes from two developments: the increasing number of agencies and foundations that have begun to require or encourage free online access to publications based on research they have helped finance; and the growing number of journals that allow authors to make their papers freely available. This month the National Institutes of Health announced that it will ask scientists whose research it supports to deposit articles about that research in PubMed Central, the free-to-use archive run by the NIH. Some prominent journals have begun offering authors the option to pay, through their grants, an open-access surcharge to make their papers freely available immediately upon publication. And the Public Library of Science (our employer), a nonprofit organization of scientists and physicians, has established new journals that offer free online access to their full contents, and whose articles have begun to attract the attention of the international media. Although questions remain, quite a few experts are clearly betting that open access will not precipitate the collapse of scholarly publishing. In fact, the case could be made that a consensus in favor of open access is emerging among scientific and policy-making institutions -- as well as individual scientists -- around the world. ExpIicit endorsements have come in the past year and a half from the Wellcome Trust, one of the world's largest nonprofit supporters of biomedical research; several United Nations initiatives; and dozens of prominent research organizations. Given such support, it makes sense to focus now on the interesting possibilities we face. 1. What will become of the market for secondary filters of primary research articles, services like BioMed Central's Faculty of 1000, which highlight important papers published in a wide swath of journals? Will fee-for-access ventures that collect open-access articles become a new cash cow for publishers? At present, faculty members offer their recommendations to the filtering services free, and publishers sell their aggregated opinions to institutions -- will established professors go on contributing their free labor to such entrepreneurial enterprises? 2.How will the role of the research library change, as open-access scholarly communication becomes more widely practiced? To what extent will librarians be freed from the burdens of subscription management? Many university libraries now encourage open access by subsidizing a portion of the publication charges in open-access venues for authors affiliated with the university, through channels like our employer's institutional membership program. Will those subsidies continue? If so, will they continue to be paid from libraries' budgets, or will they come from research budgets -- a source that would be more consistent with the view of open-access proponents that costs of publication should be part of the costs of conducting research? Or will external granting agencies, many of which already pay scientists' page charges and color-illustration fees, assume the full costs of their investigators' open-access publications? Will libraries continue to serve as intermediaries through which researchers find open-access information, as well as that available only through subscription, and how? Those questions relate not just to academic libraries, but to the mission of colleges and universities. The time has come for a comprehensive review of how best to pay for the dissemination of professors' work. 3.How will reduced legal barriers to reusing articles -- a stipulation of most formal definitions of open access -- affect teaching, research, and other scholarly activities? There are, of course, good precedents for having few or no legal restrictions on the reuse of scholarly work: Every article published by an employee of the NIH is in the public domain. Some more-restrictive open-access licenses now available, like the Creative Commons attribution license in use for articles from our employer and from BioMed Central, permit users to reproduce scholarly work in any medium, for any purpose, as long as the author receives proper credit. 4. What kinds of educational tools will such licenses make possible? For example, will we see a proliferation of online articles enhanced with explanatory links and informational sidebars, which make scientific discoveries more comprehensible to a wide audience? Will such resources be produced by commercial enterprises? By nonprofit organizations? Or by networks of volunteers, as is the case with open-source computer software? 5. Will open-access articles enable more researchers from less-developed countries to work on the frontiers of science? Given that all credible open-access journals waive publication fees for authors who can't afford to pay them, increased availability -- and therefore knowledge -- of the literature might well allow scientists in the developing world to increase their output of cutting-edge work. Would that change, in turn, help resolve the "10/90 gap" -- the unfortunate reality that less than 10 percent of the global expenditure on medical research goes to study the predominant health needs of 90 percent of the world's population? Most important, what kinds of discoveries might result from searchable, open archives of peer-reviewed, full-text scientific literature? The aggregation of gene sequences in a single, freely accessible information space (GenBank) has spawned entire fields of research; will open access to journal articles have a similar effect on areas of work that could benefit from "mining" full texts and figures? Clearly, comprehensive collections of open-access literature would make it much easier to systematically review published medical studies. Will open-access literature lead to frequent discoveries of correlations between phenomena previously thought to be unrelated? Will it spark more open access to data sets and databases of laboriously compiled and annotated information? The potential for open access to lead to new discoveries is its single most compelling asset, though one that is frequently overlooked. Discussing open access seems to be a growth industry in academe. Oddly, though, many of the recent debates and arguments about it seem to have taken a notably regressive turn. In light of the widespread enthusiasm for using the Internet to remove barriers to research articles, those backward-facing cavils are shortsighted and distract attention from more important issues. Open access is no longer just an idea to be deconstructed, analyzed, and reanalyzed. We now have information about how publishers are practicing it and how scholars and researchers are reacting to it. The really intriguing questions about the topic today deal with the reality of open access and its exciting promise. Andy Gass is a policy analyst, and Helen Doyle is director of development and strategic alliances, at the Public Library of Science. Source: The Chronicle From keith at thememorybank.co.uk Sun Feb 20 17:06:08 2005 From: keith at thememorybank.co.uk (Keith Hart) Date: Sun, 20 Feb 2005 12:36:08 +0100 Subject: [commons-law] The Hit Man's Dilemma Message-ID: <42187628.1020306@thememorybank.co.uk> I have written a full draft of my little book, /The Hit Man's Dilemma: on business, personal and impersonal./ It is available for reading and possibly comment at www.thememorybank.co.uk/blog The essay is 25,000 words and will be published in the spring by Prickly Paradigm through University of Chicago Press (www.prickly-paradigm.com) and, after a year of being sold for $10, it will be posted on the creative commons website. It is aimed at a general audience, rather less sophisticated in most cases than members of this list when it comes to the politics of the new media. Table of contents ‘Don't take this personal, it's just business’ The moral dilemma in politics, law and business Impersonal society as a modern project Private property: a short history The digital revolution Intellectual property The crisis of the intellectuals revisited Conclusions Further reading The Hit Man's Dilemma is an attempt to draw on the classical liberal tradition to develop a critique of the neo-liberal world economy. The figure of the gangster is used to show up the contradictions in capitalism's moral economy. A minor theme is the shift of world production from West to East and India's centrality to this movement. Treading the thin line between profundity and banality, the concluding remarks run as follows: "The formal conclusions of this essay are consistent with the late Durkheim of The Elementary Forms of the Religious Life. Every human being is a unique person who lives in society. We are therefore all individual and social at the same time and the two are inseparable in our experience. Society is both inside and outside us; and a lot rides on our ability to tell the difference. Society is personal when it is lived by each of us in particular; it is impersonal when it takes the form of collective ideas. Life and ideas are likewise inseparable in practice, but they need sometimes to be distinguished. "It is therefore just as damaging to insist on a radical separation of individuals and society or of life and ideas as it is to collapse the difference between them. We have seen that modern capitalism rests on a division between personal and impersonal spheres of social life. The institution of private property initially drove a conceptual wedge between our individuality and an active sense of belonging to society. Indeed the latter was made invisible or at least unreachable for most of us. But then private property assumed the form of public ownership by large business corporations and even governments. It then became convenient to collapse the difference between personal and impersonal spheres, leaving the law and political culture in general unable to distinguish between the rights of individual citizens and those of abstract social entities wielding far more power than any human being could. The consequences for democracy are disastrous. "The latest stage of the machine revolution, the convergence of telephones, television and computers in a digital network of communications, has speeded up human connection at the world level. Society now takes a number of forms – global, regional, national and local. We need new impersonal norms to guide our social interactions in such a world, but not at the expense of full recognition of our individual personalities. The stage is set for a new humanism capable of uniting these poles of our existence. We, the people, will make society on our own terms, but only if we master the means of its expression, machines and money. In the course of doing so, we will encounter immense social forces bent on denying the drive for a genuine democracy. My essay has aimed to clarify who the sides and what the stakes are in this struggle for world society. " Keith Hart From thehindu at web1.hinduonnet.com Fri Feb 18 17:23:21 2005 From: thehindu at web1.hinduonnet.com (thehindu at web1.hinduonnet.com) Date: Fri, 18 Feb 2005 17:23:21 +0530 Subject: [Commons-Law] Article from The Hindu: Sent to you by siddharth narrain Message-ID: <200502181153.j1IBrLrj015616@web1.hinduonnet.com> ============================================================= This article has been sent to you by siddharth narrain ( siddharth.narrain at gmail.com ) ============================================================= Source: PATENT ISSUES A costly prescription SIDDHARTH NARRAINin New Delhi The United Progressive Alliance government's promulgation of an ordinance amending the Patents Act of 1970, a model piece of legislation hailed around the world for checking exploitation by pharmaceutical MNCs, draws international criticism. INDIA'S patent legislation, hailed as a model all around the world for its far-reaching provisions, is on the verge of being amended. The Union Ministry of Commerce has promulgated an ordinance amending the Patents Act, 1970, to fulfil India's obligations under the World Trade Organisation's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The ordinance, promulgated in December 2004, makes wide-ranging changes to the Act and paves the way for a product patent regime to replace the process patent system. A process patent only protects the method or process that the patent holder uses to manufacture a drug. This allows other pharmaceutical companies to make the same drug using a process different from the one that is patented. The different versions of the medicine thus produced are called generic drugs. REUTERS Ciprofloxacin being manufactured at a factory of the German multinational Bayer A.G. A file picture. The British-framed Patents and Designs Act (1911), which was in force until the 1970 Act was legislated, provided for a product patent system. Prior to 1970, 85 per cent of medicines available in India were produced and distributed by multinational corporations (MNCs) and the prices of drugs in the country were among the highest in the world. The Patents Act was framed after years of deliberation and on the basis of the recommendations made by the Justice Rajagopal Ayyangar Committee (1958). The report of the committee, which was constituted by the Central government to revise the law relating to patent and design, said: "[T]he monopoly created by patent and the reward to the inventor by the grant of such monopoly offer advantages which have been claimed for the system only in highly industrialised countries which have a large capital available for investment in industries and a high degree of scientific and technological education." The Act provided for process patents for pharmaceuticals and agro-chemical products. This enabled the growth of a strong local generic drug industry, which produced the same drugs as the MNCs at relatively low prices . When Indian generics such as Cipla, Ranbaxy and Hetero began manufacturing drugs, especially for Human Immunodeficiency Virus/Acquired Immune Deficiency Syndrome (HIV/! AIDS), at much lower prices, the demand for these drugs grew in countries that could not afford to buy these drugs from MNCs. DEVELOPED countries first linked intellectual property rights with the development of trade, investment and services during the General Agreement on Tariffs and Trade (GATT) negotiations which began in Uruguay in 1986. This international regime, given a final shape in the TRIPS agreement in 1994, was to control and govern almost all aspects of intellectual property rights. TRIPS had no caveats and no member-country could withdraw from it. The only concession given to developing and least developed countries (LDCs) was an initial discretion in implementing the provisions, which were to be progressively eliminated. However, the derailment of the WTO's Seattle Ministerial Conference in 1999 by anti-globalisation activists forced a rethink. The Doha Ministerial Conference in 2001 adopted the Doha Declaration in which countries agreed to implement the TRIPS agreement in a manner supportive of the WTO members' right to take measures to protect "human, animal, plant life or health or of the environment at the levels it considers appropriate". India, along with Brazil and South Africa, played a crucial role in bringing together developing countries on the issue (Frontline, December 7, 2001). According to TRIPS, while developing countries (which includes India) had time until January 1, 2005, to enact domestic legislation to conform with the agreement, LDCs were given time until 2016. Since the Indian patent regime did not provide product patents for pharmaceuticals and agro-based products, it became obligatory to provide for a "Mail Box" facility for filing patent claims to protect these products with effect from January 1, 1995. Similarly, those "Mail Box" patent applications that satisfied certain conditions were entitled to receive exclusive marketing rights (EMRs) for five years. The date of application of TRIPS provisions, other than product patents, was January 1, 2000. The Indian government introduced the Patents (Second Amendment) Bill in December 1999 in order to implement TRIPS provisions other than product patent provisions. This Bill was referred to a Joint Parliamentary Committee. It was amended on the basis of the recommendations made by the commit! tee and enacted in December 2002. The National Democratic Alliance (NDA) government tabled a Bill in December 2003 to introduce the product patents regime in all fields of industrial economy. The Bill lapsed when general elections were called in March 2004. The United Progressive Alliance (UPA) government's ordinance has made only minor changes to the Bill. The amendment expands the scope of what can be patented. Vandana Shiva, director of the Research Foundation for Science, Technology and Natural Resource Policy, said: "The second amendment of the patent law opened up agricultural patenting. It deleted old exceptions; for example, plants were not patentable earlier. With the third amendment they have now brought product patents. In agriculture, a product patent could mean that a company may take the gene of a salinity-resistant rice variety, put it into a variety of rice through genetic engineering, and take a patent on it. But since the product patent is on the trait or salinity resistance, it means that any occurrence of that trait without paying a licence fee is an infringement, and there are cases to this effect. So, in the Basmati rice case, if we had not defeated Rice Tech, there would have been several cases of Rice Tech claiming a patent and then having that monopoly on the aroma and the size of the grain." Vandana Shiva said: "While the government was preparing to table the ordinance, it tabled another totally unnecessary law called the Seed Act. The Seed Act of 1966 was doing its job fine. It provided for quality and reliability in seeds. The farmer's varieties were not regulated. The new Seed Act undoes the 1966 Act. It now requires compulsory registration of all farmers, which means that any farmer growing his or her own traditional varieties will be treated as illegal. This is the way this compulsory seed registration has been used in other countries to shut down the farmer's seed supply alternatives. Therefore I would say that the implications for agriculture are huge." JASON REED/REUTERS A pharmaceutical worker with a new anti-HIV/AIDS medicine, dubbed by government officials as the "world's cheapest anti-AIDS cocktail", at a laboratory in Bangkok, Thailand. A file picture. The ordinance also makes patentable computer software, which has technical application in any industry or which can be incorporated into hardware. This could impede the development of software in the country. Richard Stallman, the co-developer of the Linux/GNU operating system and proponent of free software, said: "Every programme is full of implementations of various methods on how to do things. If each of those computational methods could be patented, then writing a programme can mean infringing hundreds of patents." According to him, moving from a copyright to a software patenting regime is a mistake and will increase the cost of developing new software. Indian software companies which want to develop their own products and compete at the global level will be hit hard by this amendment. "Invention", as defined by the ordinance, is too broad and could lead to "ever-greening", that is, filing patent applications for new forms of older patented drugs and of new uses of older drugs, thereby blocking the entry of generic drugs into the market. B.K. Keayla, convener of the National Working Group on Patent Law, said: "China and the United States define `invention' broadly in their patent laws and have to deal with over three lakh claims annually. This kind of volume will create chaos in India." The ordinance prohibits "mere new use" for a known substance, which does not clarify whether polymorphs, hydrates, isomers, metabolites and so on are patentable, which can lead to "ever-greening". D.P. Shah, secretary of the Indian Pharmaceutical Alliance, said: "A good example is Aventis, which in 1979 obtained a patent for fexofenadine hydrochloride. In 1996, Aventis obtained a second patent for the same compound claiming that it was a substantially pure drug." Gajanan Wakankar, executive director of the Indian Drug Manufacturers' Association, said: "The compulsory licensing provisions are adequate only as far as the conditions are concerned. But the procedures are extremely lengthy and we feel that these procedures will defeat the purpose. The procedures are such that the patent holder has the upper hand and can thwart the application of a compulsory licence by delaying it." The ordinance reduces the grounds for pre-grant opposition and says that henceforth it will only be treated as a representation and not as a party to the proceedings. It has a provision for post-grant opposition directed against the Controller who grants the patent. Ironically, the Controller will finally dispose of the post-grant opposition. The weakening of pre-grant opposition makes it tougher to prevent the filing of frivolous patents. Commerce Minister Kamal Nath described the ordinance as an interim measure to fulfil India's obligations within the stipulated time. He stated that it would be discussed in detail in the Budget session of Parliament. While justifying the provisions of the ordinance, he claimed that the fear that prices of medicines will spiral is unfounded because 97 per cent of all drugs manufactured in India are off-patent and will remain unaffected. D.G. Shah said: "We have been told a number of lies consistently by the government. Our estimate is that drugs worth Rs.3,000 crores will have to be withdrawn from the market. Our total market is worth $4.5 billion. PhRMA, the association representing the U.S. pharmaceutical industry, claims that its members are losing $1.8 billion worth of revenue [or 40 per cent of the total Indian drug market] because there is no patent regime in the country. If the U.S. pharmaceutical industry is saying that 40 per cent of the market is eligible for patent, on what basis is the Minister saying that only 3 per cent will be eligible?" . K. K. MUSTAFAH At a retail medical outlet in Kochi, Kerala. There are an estimated 9,000 applications for drugs pending in the "Mail Box". The government, in reply to a question raised in Parliament, said that there were 5,636 applications for drugs in the "Mail Box", of which 4,398 were filed by foreign corporations. With 78 per cent of the patent applications for drugs having been filed by foreign nationals and with the danger of "ever-greening", the prices of medicines are likely to rise. The government has said that the prices of life-saving drugs will not rise. But details of which drugs are in the "Mail Box" have not been made public. "How does one classify a disease like cancer? Can one say cancer drugs are not life-saving? If a drug is not listed as essential medicine in the Drug Price Control Order, does that mean it can be priced at exorbitant rates?" asked Leena Menghaney, who is part of the Affordable Medicines and Treatment Campaign (AMTC), a coalition of non-governmental organisations (NGOs), patient groups and health c! are workers that campaigns for sustained accessibility and affordability of medicines in India. A comparison of the generic and patented drug prices shows how drug prices are likely to rise exponentially . The government has to pass the ordinance in the Budget session of Parliament. While the NDA has said that it will oppose the ordinance, the Left parties are against it in its present form. D. Raja, national secretary of the Communist Party of India, said: "We have told the government that we will oppose the ordinance as it is not in the national interest. It will have serious implications for the pharmaceutical industry, agriculture and biodiversity. The government will have to amend it drastically keeping in mind the national interest. This is bound to come up in the coming Budget session and the Left parties will take up the issue clause by clause." A detailed discussion on the contents of the legislation with such far-reaching impact is essential. Wakankar said: "It is an important piece of legislation and should be considered by either a joint committee or a standing committee of Parliament." A.D. Damodaran, former Director of the Council of Scientific and Industrial Research's (CSIR) Regional Research Laboratory in Thiruvanthapuram, said: "Patent law is a techno-legal document. It must be given to an expert committee for consideration and the report of the committee should be made public." INTERNATIONAL reaction to the ordinance has been critical. Indian generic companies brought down the prices of antiretroviral therapy for HIV/AIDS from $12,000 to $140 a year. Bill Haddad, chairman and chief executive officer of Biogenerics Inc., the largest generic drug company in the U.S., said: "Two-thirds of the world' s population will be systematically deprived of life-saving drugs as of January 1, 2005. Countries in Africa dependent on Indian generic products, the WHO [World Health Organisation] and AIDS organisations worldwide have written to the Indian Prime Minister asking him to reconsider the ordinance." Activists have organised demonstrations against the ordinance in front of Indian embassies across the world. Olivier Brouant of the Medecins Sans Frontieres said: "ARV treatment is given to 25,000 HIV/AIDS patients worldwide. The Indian government has a big responsibility to the rest of the world to ensure that these drugs remain affordable." The New York Times said in an editorial on January 18 that the ordinance was heavily influenced by multinational and Indian drug-makers eager to sell patented medicines to India's huge middle class. Describing the decree as "a double hit that will cut off the supply of affordable medicines and remove generic competition that drives down the cost of brand-name drugs", the newspaper said that the ordinance was so tilted towards the pharmaceutical industry that it did not even take advantage of the rights countries enjoyed under the WTO regime to protect public health. There are options in TRIPS allowing countries to meet public health goals. For instance, Article 31, or the compulsory licensing provision, enables governments of member-countries or third parties authorised by these governments to use the subject matter of the patent without the permission of the patent holder. Article 8 stipulates that "in formulating or amending the national patent laws and regulations, members may adopt measures to protect public health and nutrition and to promote public interest in sectors of vital importance to their socio-economic and technological development". The ordinance contradicts the UPA's Common Minimum Programme, which promises that the government will "take all steps to ensure availability of life saving drugs at affordable prices". Copyright: 1995 - 2005 The Hindu Republication or redissemination of the contents of this screen are expressly prohibited without the consent of The Hindu From jeebesh at sarai.net Mon Feb 21 12:35:57 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Mon, 21 Feb 2005 12:35:57 +0530 Subject: [Commons-Law] A man, with his notes, in the city... In-Reply-To: <4214620D.1000501@sarai.net> References: <4214620D.1000501@sarai.net> Message-ID: <42198855.4090008@sarai.net> Thanks Bhagwati. Those of you who have been following Bhagwati's postings will notice a shift in his arguments. Given a complete inability to understand `piracy`, at one end by `free culture/ free code` advocates and at the other end by the `maximalist` protection` brigade, his research is opening some fresh ground for us. The dominant arguments go something like this: - Asian `pirate` networks are parasitic networks and are just transmitters of illegal copies (Lessig) - It is inimical to any formation of community (RMS) - It is a drain on `national wealth` (cultural industries and their legal warriors). - There is no sign of any transformative creative practice, thus very difficult to defend intellectually (many otherwise sympathetic scholars). What Bhagwati's research shows: - A copy culture builds infrastructures and networks (the infrastructure argument can be seen in Brain Larkin's work in Nigeria around video cultures). - These networks are dispersed, agile and dense. They move into otherwise `technologically marooned spaces` (this concept is being developed by Ravikant at Sarai) and create a lower threshold level that allows for the entry of thousands of people. - Researching the proliferation of the `remix` culture, he shows how these networks have developed internal `productive capacities` to intervene, produce and circulate new cultural forms. His collection of `Kaante Laga Ke` versions clearly gestured towards an increasingly complicated matrix. - Now with this new phase, he is opening up a new realm (the realm that was opened up in Peter Manuel's Cassette Culture). This is a world of so called `regional music`. Here, singers, musicians, sound engineers, small time dealers, locality studios combine to produce an extremely vibrant music culture for the `mobile-migrant` world of labour and the mohalla (dense habitations outside of the planned grids). You can listen to these songs on a public scale in Delhi during holi, Chatt festival, etc. We need to understand that this culture of music was able to emerge and grow within the infrastructure and networks that were built over a period of time around the `illegitimate` culture of the copy. Peter Jaszi, argued in his recent `Contested Commons` lecture, that we have a very inadequate understanding of the realm of the `user` or `consumer`, and thus are conceptually impoverished. This impoverishment adversely diminishes our account of cultures, we confine our logic to the analysis of just copying/imitation mechanisms. This is the lacuna that allows the enforcers to easily bring up the discourse of criminalisation. (This is applicable to both the high bandwidth peer-to-peer networks and also to other commerce-tainted copy cultures). Thanks again, Bhagwati, for opening up this terrain. Such research deepens our understanding of lives, as well as of songs. Best, Jeebesh Bhagwati wrote: > > A man, with his notes, in the city... > > > From tahir.amin at btopenworld.com Mon Feb 21 13:38:31 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Mon, 21 Feb 2005 08:08:31 +0000 (GMT) Subject: [Commons-Law] Access to Knowledge Meeting - Geneva Message-ID: <20050221080831.53658.qmail@web86109.mail.ukl.yahoo.com> Dear All, This is a belated posting following my attendance at the Access to Knowledge (A2K) meeting in Geneva on 3-4 February, organized by the Consumer Project on Technology (CPTech), Third World Network (TWN) and the International Federation of Library Associations (IFLA). Some of you may be familiar with the debate, but for those who are not, the following is a brief summary and introduction. To provide some background to the meeting, at the WIPO General Assembly meeting in September-October 2004, the governments of Argentina and Brazil submitted a proposal for the ‘Establishment of a Development Agenda for WIPO’, which was co-sponsored by various other developing countries. Some of the proposals were specifically directed at the special concerns of the developing countries, while others were efforts to re-direct WIPO to give more weight to general consumer and public rights interests in matters pertaining to copyright, patents and other IPRs. Included within the proposals for a Development Agenda is a proposal for a ‘Treaty on Access to Knowledge’. The WIPO General Assembly issued a decision in October that creates a rapid evaluation of the Development Agenda and the meeting was designed to follow up on this and in preparation for important forthcoming meetings in April/May 2005, and the scheduled report from the WIPO Secretariat by 30 July 2005 for consideration in September. The meeting was attended by researchers, academics, public interest groups (including librarians) and diplomats to discuss how copyright and patent laws are restricting access to knowledge with a view to formulating a strategy going forward and developing what the A2K Treaty should cover. The discussions were also based around proposals put forward by many developing countries at the Development Agenda, notably to extend the exceptions and limitations to copyright with the aim to bring about more balance between the interests of copyright holders and users. Initial sessions related to the nature and form that the A2K Treaty should take. The main debating points were: whether it is sufficient to think of access to knowledge in terms of expending exceptions and limitations to existing copyright and patent laws, thus recognising IPRs are the main rights with some exceptions recognising the need for public interest, or should the treaty be based on a human rights model whereby access to knowledge is recognised and defined in any treaty as the primary right and rights of IPR holders as secondary. Many agreed that the focus should be on the expansion of the exceptions and limitations in the existing IP regimes to bring them into line with public interest, albeit both approaches could be adopted, though reservations were expressed as to whether such an approach would displace or conflict with the existing frameworks for human rights. Participants then presented various proposals for expanding the exceptions and limitations to copyright and patents, which were discussed for their practicability and ways in which they could be improved. Many of the suggestions discussed, and subsequent ongoing discussions, can be found at the following address http://lists.essential.org/pipermail/a2k/ or by visiting http://www.cptech.org/. Also discussed was the relevance of the Appendix to the Berne Convention, namely ‘Special Provisions Regarding Developing Countries’. The discussion centered on whether the Appendix serves any function today given its lack of implementation by developing countries and the reasons for this, and whether it should be removed or re-drafted as an alternative/back up to any A2K Treaty. The meeting ended with strategies on how to move the debate forward within the various fora, namely, WIPO, WTO, regional trade agreements and the U.N agencies, and that it should not concentrate solely on the South, as access to knowledge is also an issue for the North. The latest position is that WIPO has reduced the number of NGO’s able to participate in the forthcoming meetings as well as putting a cap on the number of delegates from permanent NGO delegations to debate the Development Agenda. This is likely to ensure that the IPRs owners dominate proceedings and goes against the original nature of the Development Agenda proposal. For those of you who are interested, it is worth looking at the proposals suggested for an A2K Treaty at the link provided and it would be useful to open a discussion here, particularly suggestions at what an A2K Treaty should like taking into account practical examples of difficulties encountered in accessing information. Tahir --------------------------------- ALL-NEW Yahoo! Messenger - all new features - even more fun! -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050221/4398d92f/attachment.html From sollybenj at yahoo.co.in Mon Feb 21 13:59:54 2005 From: sollybenj at yahoo.co.in (solomon benjamin) Date: Mon, 21 Feb 2005 08:29:54 +0000 (GMT) Subject: [Commons-Law] notes, in the city...of representation, and innovation.. In-Reply-To: <42198855.4090008@sarai.net> Message-ID: <20050221082954.45186.qmail@web8410.mail.in.yahoo.com> Hi This is support both Jeebesh's and Bhagwati's emails. Also the Kanta lagga CD -- which has really inspired me to think about how one needs to present an analysis of an economy, that reflects the way it transfroms in creative way. The specific point here is that much of our conventional ways of analysis and presentation a paper with footnotes, implictly stress 'authorship' when the move in to the realm of publication by elsiver controlled journals. Can one then conceptualize alternative forms of transmission that allow transformation of the description of a changing economic organization. Transformation is then both in what is described, and what is represented. The second more general point, is to support the "new ground" what Jeebesh and Bhagwati have listed as charecteristics of the "pirate". Its a bit like what the ILO used the terms "Informal economy " or then "Marginalized" of particular types of economic organization that they saw threatening to a modenist and Nation state agenda. What I am most amused and facinating are the strong parallels between how the "Informal Sector" (how this concepts came up, the way it developed a particular type of academic constituency with its own particular political economy of academic) and now, on how Piracy is viewed. Back to Jeebesh's very useful and clarifing email: - A copy culture builds infrastructures and networks SB: Here, my work in East Delhi on cables and conductors, and also later on the textile industry of Kancheepuram and Ramanagaram showed how the material basis of increasing customization appropriated in creative ways existing ways of producing from what was seen to be 'waste'. Here one guy recersed engineered cotton machines from Coimbatore to re-work these to process silk waste for fabric fro high end fashion markets in NYC, Paris, Tel Avic, and Milan. These mvoed inot these locations via "suitcase entrepreneures" not only large exporters. Similarly, we saw in Kancheepuram, looms being re-done to use varied types of yarns to produce a low cost Kancheepuram saree at Rs. 3500 vs the normal 18K to 25 K range. Although it lasts only 5 years, it allows the wearer to enjoy "class" since you cant make it out from the earlier version. - These networks are dispersed, agile and dense..... SB: In both cases, there are new networks, like the suitcase entrprenure taking the Ramanagaram yarn and fabric via economy class to Milan, you have Kancheepuram an equally large trading market and complex circuits. In both cases, as I saw in East Delhi, lables such as traders, workers, entrrepreisne, innovators and financiers are all inter-changable.. I think Rachiere work The Poor and Philosopher is wonderfully applicable. I suspect when much of our economy is driven by seasonal production, we would find much 'switching' of identities. - Researching the proliferation of the `remix` culture, ....On how these networks have developed internal `productive capacities` to intervene, produce and circulate new cultural forms. SB: The parallels here the new designs in the Kancheepuram are wonderful. You have a scanned image via the internet moving into a cyber cafe and on to the local designers who rework these and then back and forth as the product moves out marketed in Singapore and East Africa.. and back again new ideas.. ...move into otherwise `technologically marooned spaces` (this concept is being developed by Ravikant at Sarai) and create a lower threshold level that allows for the entry of thousands of people... SB: I think this is really important in that moving into 'technologically marooned spaces' also underpins and shapes a particular politics usually centered around how one can maintain a 'transformative' landscape. Can one have mixed land usedespite the Master Planners, or sub-dicide and valorize over time to fund production to avoid the VC mode of financing and with it, stronger IPR!. Here, I think, Rachiers book (mentioned earlier,) and LInebaughs' Many headed Hydra is really important to re-conceptulize politics that moves away from the Trotsky mode. well, more later Solly --- Jeebesh Bagchi wrote: > Thanks Bhagwati. > > Those of you who have been following Bhagwati's > postings will notice a > shift in his arguments. Given a complete inability > to understand > `piracy`, at one end by `free culture/ free code` > advocates and at the > other end by the `maximalist` protection` brigade, > his research is > opening some fresh ground for us. > > The dominant arguments go something like this: > - Asian `pirate` networks are parasitic networks and > are just > transmitters of illegal copies (Lessig) > - It is inimical to any formation of community (RMS) > - It is a drain on `national wealth` (cultural > industries and their > legal warriors). > - There is no sign of any transformative creative > practice, thus very > difficult to defend intellectually (many otherwise > sympathetic scholars). > > What Bhagwati's research shows: > > - A copy culture builds infrastructures and networks > (the infrastructure > argument can be seen in Brain Larkin's work in > Nigeria around video > cultures). > - These networks are dispersed, agile and dense. > They move into > otherwise `technologically marooned spaces` (this > concept is being > developed by Ravikant at Sarai) and create a lower > threshold level that > allows for the entry of thousands of people. > > - Researching the proliferation of the `remix` > culture, he shows how these networks have developed internal `productive capacities` to intervene, produce and circulate new cultural forms. > His collection of > `Kaante Laga Ke` versions clearly gestured towards > an increasingly > complicated matrix. > > - Now with this new phase, he is opening up a new > realm (the realm that > was opened up in Peter Manuel's Cassette Culture). > This is a world of > so called `regional music`. Here, singers, > musicians, sound engineers, > small time dealers, locality studios combine to > produce an extremely > vibrant music culture for the `mobile-migrant` world > of labour and the > mohalla (dense habitations outside of the planned > grids). You can listen > to these songs on a public scale in Delhi during > holi, Chatt festival, etc. > > We need to understand that this culture of music was > able to emerge and > grow within the infrastructure and networks that > were built over a > period of time around the `illegitimate` culture of > the copy. > > Peter Jaszi, argued in his recent `Contested > Commons` lecture, that we > have a very inadequate understanding of the realm of > the `user` or > `consumer`, and thus are conceptually impoverished. > This impoverishment > adversely diminishes our account of cultures, we > confine our logic to > the analysis of just copying/imitation mechanisms. > This is the lacuna > that allows the enforcers to easily bring up the > discourse of > criminalisation. (This is applicable to both the > high bandwidth > peer-to-peer networks and also to other > commerce-tainted copy cultures). > > Thanks again, Bhagwati, for opening up this terrain. > Such research > deepens our understanding of lives, as well as of > songs. > > Best, > Jeebesh > > Bhagwati wrote: > > > > > A man, with his notes, in the city... > > > > > > > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > ________________________________________________________________________ Yahoo! India Matrimony: Find your life partner online Go to: http://yahoo.shaadi.com/india-matrimony From nonie at downboy.com Mon Feb 21 06:20:33 2005 From: nonie at downboy.com (fidel emerick) Date: Mon, 21 Feb 2005 06:50:33 +0600 Subject: [Commons-Law] Get Good ink products at discount prices. Message-ID: An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050221/64d83505/attachment.html From paul at waag.org Mon Feb 21 17:32:42 2005 From: paul at waag.org (paul keller) Date: Mon, 21 Feb 2005 13:02:42 +0100 Subject: [Commons-Law] Re: Copyscape In-Reply-To: <549462c10502190541f2f1672@mail.gmail.com> References: <549462c10502190541f2f1672@mail.gmail.com> Message-ID: dear all, this post brings me to a question that i wanted to pose to this list for a while now. wouldn't it be useful to have some kind of publicly formulated policy on (re-)using material that has been posted to this list? the character of the list, the issues discussed and the people and organisations attached to this list seem to suggest to me that original postings on this list should be available for (re-)use but there is no public statement on this issue to be found. in the absence of such a statement the current copyright situation would imply that none of the material can be reused unless one acquires permission from the author(s) first. some mailing lists deal with this by having a short statement in the footer. nettime for example has the following one: > # distributed via : no commercial use without permission which seems to indicate that non-comercial use (whatever that is) of the material posted on nettime is authoriszed (or even wanted) by the contributors. i think that something along these lines would be useful for this list as well (and other lists hosted by sarai, i am cc-ing this to the commons law list as well). my suggestion for such a statement would be something along these lines: distributed via the reader-list. all original contributions can be freely used without permission. however the individual authors would like to be credited for their contributions. best, paul On 19 Feb, 2005, at 14:41, Adreesh Katyal wrote: > Dear all, > Please see below the note about Copyscape. I would like to know what > members on the reader-list think about this. Such a service is also > likely to go against copy-pasting entire webpages into mailing lists > including this one. Is copyright finally reclaiming the web? > Thanks > Adreesh Katyal > > > > About Copyscape > http://copyscape.com/ > Copyscape is dedicated to defending your rights online, helping you > fight against online plagiarism and content theft. Copyscape finds > sites that have copied your content without permission, as well as > those that have quoted you. > > Copyscape provides the following: > > > The free Copyscape service makes it easy to find copies of your > content on the Web. Simply type in the address of your original web > page, and Copyscape does the rest. > > The advanced Copysentry service provides comprehensive defense for > your entire website. Copysentry automatically scans the web daily and > alerts you to copies of any page on your site. > > The Global Web Rights campaign provides the tools and information you > need to defend yourself against content theft and copyright violations > on the web. > > More information about Copyscape and Copysentry is provided in the > FAQs. Read reviews of Copyscape in the press, and testimonials from > users like you. Copyscape is provided by Indigo Stream Technologies > Ltd. We invite your comments and suggestions for improving the > Copyscape service. > _________________________________________ > reader-list: an open discussion list on media and the city. > Critiques & Collaborations > To subscribe: send an email to reader-list-request at sarai.net with > subscribe in the subject header. > List archive: From joe_tantine at yahoo.com Tue Feb 22 11:57:00 2005 From: joe_tantine at yahoo.com (Joe Joe Harding) Date: Mon, 21 Feb 2005 22:27:00 -0800 (PST) Subject: [Commons-Law] A man, with his notes, in the city... In-Reply-To: <42198855.4090008@sarai.net> Message-ID: <20050222062700.41438.qmail@web54508.mail.yahoo.com> Few Comments for consideration (and not as critique): What popularly goes as 'Piracy' or 'Copy culture' can also be defined as Commodity production units struggling to survive in an environment of varying hostility of the legal framework of the state. --- Jeebesh Bagchi wrote: > - A copy culture builds infrastructures and networks > (the infrastructure > argument can be seen in Brain Larkin's work in > Nigeria around video > cultures). Like all commodity production it also has and build networks and infrastructure. Limits are defined by the strength and density of state-legal grid. > - These networks are dispersed, agile and dense. > They move into > otherwise `technologically marooned spaces` (this > concept is being > developed by Ravikant at Sarai) and create a lower > threshold level that > allows for the entry of thousands of people. Being dispersed and with low investment requirement it attracts greater and greater production. Limits are defined by social productivity, demand and legal enforcement. > > - Researching the proliferation of the `remix` > culture, he shows how > these networks have developed internal `productive > capacities` to > intervene, produce and circulate new cultural forms. > His collection of > `Kaante Laga Ke` versions clearly gestured towards > an increasingly > complicated matrix. All commodity production does engengender 'productive capacities' for production of new forms and products. These are common to all commodity production. The only difference is the covert struggle against the existing legal framework. Celebration and valoristaion of commodity economy, in all its forms has its own implications. Milton Friedman could openly say that smugglers do great good to society for they break the artificial barriers to the free growth of commodity economy. He too followed the logic of commodity economy to its obvious conclusion. But does it make commodity production any more enticing? > > - Now with this new phase, he is opening up a new > realm (the realm that > was opened up in Peter Manuel's Cassette Culture). > This is a world of > so called `regional music`. Here, singers, > musicians, sound engineers, > small time dealers, locality studios combine to > produce an extremely > vibrant music culture for the `mobile-migrant` world > of labour and the > mohalla (dense habitations outside of the planned > grids). You can listen > to these songs on a public scale in Delhi during > holi, Chatt festival, etc. A 'vibrant music culture for the 'mobile migrant' world of labour and the mohalla' has its own charm and energy irrespective of its link with commodity eceonomy. > > We need to understand that this culture of music was > able to emerge and > grow within the infrastructure and networks that > were built over a > period of time around the `illegitimate` culture of > the copy. This link is possibly an existential fact of the day, but has it got a necssary connection? I am sure culture of music was historically vibrant before its commoditification and has also always shown great vibrancy outside the grid of commodity production. J ________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com From rajlakshmi_nesargi at yahoo.com Tue Feb 22 12:52:28 2005 From: rajlakshmi_nesargi at yahoo.com (Rajlakshmi Nesargi) Date: Mon, 21 Feb 2005 23:22:28 -0800 (PST) Subject: [Commons-Law] article published in EPW titled Copyright and Copyculture in Indian music Message-ID: <20050222072228.72549.qmail@web51609.mail.yahoo.com> Dear friends, The following is my article which was published in the February 5th-11th, 2005 edition of EPW. COPYRIGHT AND COPYCULTURE IN INDIAN MUSIC Technological development in the music industry has brought along with it a new generation of ��Copy Culture��. The copyculture used in making creative changes in existing Indian songs has been generally termed as version recording. Three types of version recordings[1] have so far been defined: cover versions that are also called version recordings, medleys and remixes. The genre of music that seems to have made the most recent success with the Indian people is that of version recordings, a result of the technological development in music. It has been defined in Super Cassette Industries[2] as ��the singing of a well-known song by a lesser-known singer��. Essentially, there are two ingredients present in version recordings; different singers and different orchestra. Along with version recording came the medleys, which are a musical selection wherein the music is one or two minutes long and is basically an arrangement of snippets of the original song according to the arranger��s choice. After the success of such daring musical experiments came the era of remixes, basically an adaptation of old tunes to a new arrangement. The history of remixes, which began in 1990��s shows a development series beginning with echo-effect that can be heard on the cassettes being sold in the markets containing songs sung by Mukesh, Mohd. Rafi, Lata Mangeshkar, Asha Bhosle. Then came series of songs remixed with ��Jhankar beats�� which were added to the already existing songs. After this, came version recordings, where evergreen songs were reproduced with lesser-known singers singing with the same background music played by a different orchestra. This trend changed rather substantively when the audio effect was extended to the video. The ��not so serious�� experimentation in music took a serious turn when competition intensified the Indian music world. ADVENT OF COPY CULTURE The advent of silicon chips and integrated circuits in the 1960s introduced into the international music industry a new dimension of ��copy culture��, leading to the emergence of cassette technology and then to of CDs VCDs and DVDs. Cassettes were the first of their kind to be used for audio reproduction and distribution, and hence changed the monopolistic nature of production and distribution of phonograms. The cassette culture still exists because of its low cost and its accessibility to lower-income groups, enabling consumption of recorded music and reproduction [Manuel 2001]. Version recording is a result of the nature of the ��copyculture��, where copying from a single original does not cost much except for the cost of a computer, a CD writer and blank CDs or cassettes, thus making this business extremely competitive. Competitiveness has increased to the extent that a single phone call from a big company to the small company about version recording needed in the album along with the video theme, is all that is needed to push the latter to make a call to the studio to get the song version recorded. Further, it only takes a single evening to get the entire album done and sent to the particular market where such version recordings are in demand. The high return to the small investments required has made the entire industry of version recording a highly lucrative business at the same time competitive.[3] To support the competition, Section 52(1) (j) of the Indian Copyright Act, 1957 was amended in 1995 to enable interested entities to make adaptations on previous sound recordings, without having to wait for the consent of the right holders. This provision, read with rule 21 of the Copyright Rules, enables the version recorders to send a notice of intention 15 days in advance of the recording. However, this right was allowed to be exercised only after two years of the publication of the original recordings. Royalty was also fixed at 5 percent, regardless of the popularity or any other special history of the song in the society. The inclusion of the section to facilitate version recording has led to a corresponding increase in the number of litigations, along with a raise in competition. Since this is entirely a different issue, this article will not go into it. Due to these changes in the approach pertaining to making remixes, and the law that facilitated it, the IMI came up with a report for the Central . Government The privilege given under this provision is basically for the benefit of the version recorders. However, it is felt by the original rights holders that their interest are being jeopardy. The reasons adduced by them, inter-alia are: �� Violation of the moral rights of the rights holder, �� Extremely short period of monopoly allowed thereby curtailing the financial benefit, �� Extremely low royalty rate and misrepresentation regarding the quantity of work to be produced in the market, �� Absence of the optical disc law and misrepresentation of quantity of CDs manufactured, �� Unequal sales tax, �� Legal issues arising due to absence of fast track courts, compulsory arbitration, statutory damages, appeal against acquittal, etc. The facilitation by Section 52(1) (j) to make version recordings without having to wait for the consent of the music author, in case the statutory provisions are complied with, is more along the lines of compulsory licensing. This kind of facilitation defeats the very purpose of creativity promoted by the philosophy behind the copyright law. This facilitation further blurs the distinction between the original music author and the version recorders as owners or authors. It is further alleged by the Indian music industry that the provision provided under Section 57 pertaining to moral rights is violated. Moral rights are the rights that a musical author carries with him/her on the work created regardless of the status of the work, that is, regardless of whether the bundles of rights have been transferred (exclusive or non-exclusive). Moral right prevents distortion of the musical author��s work and protects his/her reputation. Compulsory licensing, it is alleged, allows distortion of songs without allowing the musical author to prevent it and hence ��playing�� with the reputation of the musical author, thus defeating the very purpose of moral right. The copyright protection given to the musical author has been practically curtailed to two years from the year following the release of the song. It is strongly felt in the industry that two years is a very short period for any song to reach optimal sales level. The royalty of 5 per cent is considered by the music author to be too meager compared with the financial benefit derived through adaptation of the sound recording. In addition, music authors have voiced a related concern of misrepresentation regarding the quantity of recordings produced by version recorders. Socio-economic legislations have in effect shifted partially the burden of proof on the accused by providing that the accused shall prove beyond reasonable doubt the absence of the mens rea, nexus between income and assets, but in India the plaintiffs are required to prove that there is infringement of their work and also they have incurred a loss because of the defendants�� activities. The onus of proof, if shifted from the plaintiffs/complainants to the defendants would require them to prove that there is no infringement in the work they are doing. Another issue is that Section 68 (b) of the Copyright Act, 1957 provides de-minimus punishment of one year that may be extended with or without fine, which is too small a penalty consideration the magnitude of financial, moral loss in the market. Further, Section 70 of the Copyright Act, provides that a judicial magistrate of first class or the metropolitan magistrate shall try the offence and has the discretion of granting fine not exceeding Rs.5,000/-. Inevitably the case is then appealed by the music copyright owner in the high court.[4] A study of the cases appealed shows that almost all cases are appealed to the high court and the time taken for the matter to reach High court delays the provision of justice. The version recorders�� responses can be summarized as follows: �� Version recordings and remixes promote new talents; �� Version recorders wait for two years after the original recordings; �� They are required to comply with formalities such as maintenance books of accounts etc. The version recorders argue that version recordings promote new talents since lesser known singers are given the opportunity to sing. It is also argued that a version recording introduces new singers in the market thus promoting new talents in a cheaper and easier way. Version recordings enjoy a short span of success amidst a small segment of customers, and hence it is argued that even two years from the year next to the year of release of the songs is a long time. The version recorders also say that too have to maintain books of account on the number of copies made of the cassettes/CDs/VCDs /DVDs, the number of copies sold and the rate at which they are sold. This kind of information does not provide any scope, as is alleged by the IMI, to make any unauthorized copies amounting to piracy. EPW "You must be the change you wish to see in the world. First they ignore you, then they laugh at you, then they fight you, then you win"-Mahatma Gandhi __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050221/7969426a/attachment.html From aidslaw at bom5.vsnl.net.in Tue Feb 22 14:08:21 2005 From: aidslaw at bom5.vsnl.net.in (lawyers) Date: Tue, 22 Feb 2005 14:08:21 +0530 Subject: [Commons-Law] Dharna Against patent Ordinance Message-ID: <00ae01c518b9$dd6187a0$0e00a8c0@lawyers> THE PATENTS ORDINANCE is a Direct Threat to Peoples' Health & Food PROTEST NOW 26 February 2005, Dharna at Azad Maidan Dear Friends The Patents Ordinance issued by the government of India on 26 December 2004 to amend Patents Act prescribes "TRIPS-PLUS" standards that takes India beyond the commitments agreed to under the TRIPS agreement. Further, it also undermines the flexibility available within TRIPS, as reiterated in the Doha Declaration, to ensure access to medicines to people of India and other developing countries. The Ordinance compromises accessibility and availability of medicines. Public interest groups in India and abroad are gravely concerned that the Ordinance will trade away India's right to protect public health including availability of low-cost, quality generic medicines. In other words, accepting the Ordinance will have the effect of losing even the minimum space available within the TRIPS agreement to protect public health. Apart from pharmaceuticals, the Ordinance also provides patent protection to agro-chemicals and fertilisers enabling the companies to charge monopoly prices. High costs of pesticides will result in costlier foodgrains and will negatively hit consumers, especially the poor. Against this background, trade unions and public interest groups are holding a mass protest on 26 February 2005 against the Patents (Amendment) Ordinance 2004 in front of Parliament. Protests are happening all over the world on the same day against the Ordinance. In Mumbai, a Dharna will be held at Azad Maidian from 11.00 am to 4.00 pm to express our protest as well as our solidarity to the cause. We request your wholehearted support and participation in the Dharna to make it a success. In Solidarity Trade Unions Joint Action Committee (Mumbai-Maharashtra) Forum for HIV/AIDS Jan Swasthya Abiyaan (Mumbai) Affordable Medicines and Treatment Campaign (AMTC) Contact:A D Golandaz (Tel:26501086 , Cell: 9820613995) K M Gopakumar ( Tel: 22676213, Cell: 9819140881) Wilson Gaikawad ( Tel: 28505858 / 28515040) -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050222/cfa6f3e3/attachment.html From jeebesh at sarai.net Tue Feb 22 19:01:12 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Tue, 22 Feb 2005 19:01:12 +0530 Subject: [Commons-Law] A man, with his notes, in the city... In-Reply-To: <20050222062700.41438.qmail@web54508.mail.yahoo.com> References: <20050222062700.41438.qmail@web54508.mail.yahoo.com> Message-ID: <421B3420.5080100@sarai.net> dear Joe, Thanks for your cautionary remarks. I do understand (and appreciate your re-stating) that `commodity` economy works through a internal expansionary logic and it's valorisation is not with it's danger of slipping into some form of defense of small against big, or national and foreign or for some faction against some faction. Also, it can make us slip away from the corrosive and alienating forms that is associated with it. My own question arises from another set of queries. - When something is marked under the sign of `commodity`, `commodification`, `illegality`, `criminality`, or `wage-work` we seem loose a sense of curiousity about the social worlds/realms that live, elaborates, innovates, contests, performs under these signs. I am now interested in how to talk about these social worlds and to develop conceptual and descriptive framework to do so. - Commodity economy grew over the last 500 years rapidly and wage-based commodity production accelerated this process. We have now an adequate understanding of some of its working and how it expands and how it devours more and more areas of social life. But the logic of commodity production is also historically imbricated in many diverse social forms and practices. At times it produces Goebbels and at times circulates Bob Dylan. At times it punishes people into indentured labours and attimes it stops people to enter its borders. I would think looking at certain specific imbrication can make us ask interesting questions about nature of power, social practices and imaginations. - What interest me today are specific networks of production and circulation of cultural goods that are continuously raided by property enforcers and deviously being marked by discourse of `theft` and `criminality`. I am interested in figuring out the social world that seems so threatening to huge global players. In this question, is also locked in the question of `imagination` of urban landscape and transformation. The specific urban design and plans that today are being enlarged has got to do with how social life is to be re-organised. I think that, what it stubbornly resisting this `re-design` is worthy to be looked at and understood. Maybe, through it we can ask other set of questions about our collective future and it's look. - I agree that people have been singing and will be singing outside commodity forms. I would think the relation is not just one of simple binary opposite. It is interlaced in a complicated way. The global popularity and circulation of many currents of music and it's continuous remixing is an interesting case in point. (popularity and circulation of Jazz is a good case) I hope, i have been able to make some sense. Looking forward to some opening up. cheers jeebesh Joe Joe Harding wrote: >Few Comments for consideration (and not as critique): > >What popularly goes as 'Piracy' or 'Copy culture' can >also be defined as Commodity production units >struggling to survive in an environment of varying >hostility >of the legal framework of the state. > >--- Jeebesh Bagchi wrote: > > > >>- A copy culture builds infrastructures and networks >>(the infrastructure >>argument can be seen in Brain Larkin's work in >>Nigeria around video >>cultures). >> >> > >Like all commodity production it also has and build >networks >and infrastructure. Limits are defined by the strength >and density of state-legal grid. > > > >>- These networks are dispersed, agile and dense. >>They move into >>otherwise `technologically marooned spaces` (this >>concept is being >>developed by Ravikant at Sarai) and create a lower >>threshold level that >>allows for the entry of thousands of people. >> >> > >Being dispersed and with low investment requirement it >attracts greater and greater production. Limits are >defined by social productivity, >demand and legal enforcement. > > > >>- Researching the proliferation of the `remix` >>culture, he shows how >>these networks have developed internal `productive >>capacities` to >>intervene, produce and circulate new cultural forms. >>His collection of >>`Kaante Laga Ke` versions clearly gestured towards >>an increasingly >>complicated matrix. >> >> > >All commodity production does engengender 'productive >capacities' for production of new forms and products. > >These are common to all commodity production. The only >difference is the covert struggle against the existing >legal framework. Celebration and valoristaion of >commodity economy, in all its forms has its own >implications. > >Milton Friedman could openly say that smugglers do >great good to society for they break the >artificial barriers to the free growth of commodity >economy. He too followed the logic of commodity >economy >to its obvious conclusion. > >But does it make commodity production any more >enticing? > > > >>- Now with this new phase, he is opening up a new >>realm (the realm that >>was opened up in Peter Manuel's Cassette Culture). >>This is a world of >>so called `regional music`. Here, singers, >>musicians, sound engineers, >>small time dealers, locality studios combine to >>produce an extremely >>vibrant music culture for the `mobile-migrant` world >>of labour and the >>mohalla (dense habitations outside of the planned >>grids). You can listen >>to these songs on a public scale in Delhi during >>holi, Chatt festival, etc. >> >> > >A 'vibrant music culture for the 'mobile migrant' >world >of labour and the mohalla' has its own charm and >energy >irrespective of its link with commodity eceonomy. > > > >>We need to understand that this culture of music was >>able to emerge and >>grow within the infrastructure and networks that >>were built over a >>period of time around the `illegitimate` culture of >>the copy. >> >> > >This link is possibly an existential fact of the day, >but has it got a necssary connection? I am sure >culture >of music was historically vibrant before its >commoditification and has also always shown great >vibrancy >outside the grid of commodity production. > >J >________________________ > > >>commons-law mailing list >>commons-law at sarai.net >>https://mail.sarai.net/mailman/listinfo/commons-law >> >> >> > > >__________________________________________________ >Do You Yahoo!? >Tired of spam? Yahoo! Mail has the best spam protection around >http://mail.yahoo.com >_______________________________________________ >commons-law mailing list >commons-law at sarai.net >https://mail.sarai.net/mailman/listinfo/commons-law > > > From shwetashree at hotmail.com Tue Feb 22 20:10:11 2005 From: shwetashree at hotmail.com (Shwetasree Majumder) Date: Tue, 22 Feb 2005 14:40:11 +0000 Subject: [Commons-Law] (no subject) Message-ID: Dear all, The Amarnath Sehgal v. Union of India case (as most of you who've read the Delhi papers today already know) was decided by Justice Pradeep Nandrajog on the 21st of February 2005. The case was one where an eminent sculptor sued the Government of India for a violation of his �Moral Rights� in a mural that had been created by him for display on the walls of a prominent government building and which had been unceremoniously taken down, distorted, mutilated and damaged by the Government. Although the 140 feet by 40 feet bronze mural had been sold by the sculptor to the Government of India, who by virtue of the contract signed by the sculptor also became the owners of the copyright in the said work, this decision acknowledged that �the author has a right to preserve, protect and nurture his creations through his moral rights�. The decision talks at length about the length and breadth of moral rights and argues that destruction can also be prejudicial to reputation as even mutilation is a 'treatment of a work' that renders it imperfect. The judge goes on to hold that Sehgal's work constitutes the cultural heritage of India which the government is obliged to protect by virtue of its own international commitments such as those enshrined in the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the Convention Concerning the Protection of the World Cultural and national heritage, The ICESCR and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. The said commitments are read into the Indian law by the judge through the Vishakha route. The judge has also noted that the Government has specifically outlined its commitment to Art and Culture in the 10th Five Year Plan and therefore it has the following three-fold obligations: 1. respecting 2. protecting and 3. preserving cultural rights. Thus the hitherto ambiguous moral rights of artists and authors in India have been given a liberal interpretation by the judge who has ultimate held that: 1.the mural is to be returned in two weeks to the plaintiff 2. all rights in the mural will vest in the plaintiff 3. the plaintiff can recreate the mural in any place or even sell the same (NOTE: the mural, by the way, on an estimate of the market value of the bronze used alone is about 1 crore as of date) 4. damages of 5 lakhs payable in a month and if not paid within the said date then with 9per cent simple interest 5. costs you may contact me personally for any further details of the case. Shwetasree ------------------------------------------------------------------------------ Dream what you want to dream; Go where you want to go; Be what you want to be; You have only one life and one chance To do all the things you want to do. ------------------------------------------------------------------------------ _________________________________________________________________ Start you business on Baazee today! http://adfarm.mediaplex.com/ad/ck/4686-26272-10936-31?ck=RegSell Register for Free! From shwetashree at hotmail.com Tue Feb 22 20:10:11 2005 From: shwetashree at hotmail.com (Shwetasree Majumder) Date: Tue, 22 Feb 2005 14:40:11 +0000 Subject: [Commons-Law] (no subject) Message-ID: Dear all, The Amarnath Sehgal v. Union of India case (as most of you who've read the Delhi papers today already know) was decided by Justice Pradeep Nandrajog on the 21st of February 2005. The case was one where an eminent sculptor sued the Government of India for a violation of his �Moral Rights� in a mural that had been created by him for display on the walls of a prominent government building and which had been unceremoniously taken down, distorted, mutilated and damaged by the Government. Although the 140 feet by 40 feet bronze mural had been sold by the sculptor to the Government of India, who by virtue of the contract signed by the sculptor also became the owners of the copyright in the said work, this decision acknowledged that �the author has a right to preserve, protect and nurture his creations through his moral rights�. The decision talks at length about the length and breadth of moral rights and argues that destruction can also be prejudicial to reputation as even mutilation is a 'treatment of a work' that renders it imperfect. The judge goes on to hold that Sehgal's work constitutes the cultural heritage of India which the government is obliged to protect by virtue of its own international commitments such as those enshrined in the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the Convention Concerning the Protection of the World Cultural and national heritage, The ICESCR and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. The said commitments are read into the Indian law by the judge through the Vishakha route. The judge has also noted that the Government has specifically outlined its commitment to Art and Culture in the 10th Five Year Plan and therefore it has the following three-fold obligations: 1. respecting 2. protecting and 3. preserving cultural rights. Thus the hitherto ambiguous moral rights of artists and authors in India have been given a liberal interpretation by the judge who has ultimate held that: 1.the mural is to be returned in two weeks to the plaintiff 2. all rights in the mural will vest in the plaintiff 3. the plaintiff can recreate the mural in any place or even sell the same (NOTE: the mural, by the way, on an estimate of the market value of the bronze used alone is about 1 crore as of date) 4. damages of 5 lakhs payable in a month and if not paid within the said date then with 9per cent simple interest 5. costs you may contact me personally for any further details of the case. Shwetasree ------------------------------------------------------------------------------ Dream what you want to dream; Go where you want to go; Be what you want to be; You have only one life and one chance To do all the things you want to do. ------------------------------------------------------------------------------ _________________________________________________________________ Start you business on Baazee today! http://adfarm.mediaplex.com/ad/ck/4686-26272-10936-31?ck=RegSell Register for Free! From joe_tantine at yahoo.com Wed Feb 23 12:36:45 2005 From: joe_tantine at yahoo.com (Joe Joe Harding) Date: Tue, 22 Feb 2005 23:06:45 -0800 (PST) Subject: [Commons-Law] A man, with his notes, in the city... In-Reply-To: <421B3420.5080100@sarai.net> Message-ID: <20050223070645.49802.qmail@web54503.mail.yahoo.com> Dear Jeebesh, thanks for the reply. But a few more comments would poosibly help me in expressing myself beter. --- Jeebesh Bagchi wrote: > > My own question arises from another set of queries. > > - When something is marked under the sign of > `commodity`, > `commodification`, `illegality`, `criminality`, or > `wage-work` we seem > loose a sense of curiousity about the social > worlds/realms that live, > elaborates, innovates, contests, performs under > these signs. I am now > interested in how to talk about these social worlds > and to develop > conceptual and descriptive framework to do so. The lived social world which elaborates, innovates, contest and performs is anterior to the signs. Circumscribibg the curioisity of the lived world by the signs brings in the logic of the signs and that which they signify. The challenge perhaps is to talk of the social world and to develop conceptual and descriptive framework to do so by the transcending the binaries and irrespective of the binaries. > > - Commodity economy grew over the last 500 years > rapidly and wage-based > commodity production accelerated this process. We > have now an adequate > understanding of some of its working and how it > expands and how it > devours more and more areas of social life. But the > logic of commodity > production is also historically imbricated in many > diverse social forms > and practices. At times it produces Goebbels and at > times circulates Bob > Dylan. At times it punishes people into indentured > labours and attimes > it stops people to enter its borders. I would think > looking at certain > specific imbrication can make us ask interesting > questions about nature > of power, social practices and imaginations. The world possibly can be visualised as a deterministic chaos. The logic of the commodity is one deterministic axis and there are other axes of determinations which produces the chaoticness of the world. Material production and reproduction together with its entourage of state-legalistic grid has unfortunately produced almost all our conceptual categories. The other axes are perhaps equally if not more important in understanding the variations or the imbrications. > - What interest me today are specific networks of > production and > circulation of cultural goods that are continuously > raided by property > enforcers and deviously being marked by discourse of > `theft` and > `criminality`. I am interested in figuring out the > social world that > seems so threatening to huge global players. In this > question, is also > locked in the question of `imagination` of urban > landscape and > transformation. The specific urban design and plans > that today are being > enlarged has got to do with how social life is to be > re-organised. I > think that, what it stubbornly resisting this > `re-design` is worthy to > be looked at and understood. Maybe, through it we > can ask other set of > questions about our collective future and it's look. The production and network of vibrant cultural goods are interesting per say. But when that is circumscribed by its relation to state-legalistic grid, it again signifies the grand entry of the predominat axes of material production and reproduction. Resistance has a lot to do with the internal logic of commodity production. But there are also resistances which is possibly due to other axes of determination. And that is interesting to study. > - I agree that people have been singing and will be > singing outside > commodity forms. I would think the relation is not > just one of simple > binary opposite. It is interlaced in a complicated > way. The global > popularity and circulation of many currents of music > and it's continuous > remixing is an interesting case in point. > (popularity and circulation of > Jazz is a good case) The relation is not binary and is a complicated one possibly because the world is a deterministic chaos with multiple axes of determinations. The point which interests is to look for the other axes of determinations. During the last two centuries our vision is constrained by material reproduction of social life, state and politics, perhaps these needs to be transcended. J > > > Joe Joe Harding wrote: > > >Few Comments for consideration (and not as > critique): > > > >What popularly goes as 'Piracy' or 'Copy culture' > can > >also be defined as Commodity production units > >struggling to survive in an environment of varying > >hostility > >of the legal framework of the state. > > > >--- Jeebesh Bagchi wrote: > > > > > > > >>- A copy culture builds infrastructures and > networks > >>(the infrastructure > >>argument can be seen in Brain Larkin's work in > >>Nigeria around video > >>cultures). > >> > >> > > > >Like all commodity production it also has and build > >networks > >and infrastructure. Limits are defined by the > strength > >and density of state-legal grid. > > > > > > > >>- These networks are dispersed, agile and dense. > >>They move into > >>otherwise `technologically marooned spaces` (this > >>concept is being > >>developed by Ravikant at Sarai) and create a lower > >>threshold level that > >>allows for the entry of thousands of people. > >> > >> > > > >Being dispersed and with low investment requirement > it > >attracts greater and greater production. Limits are > >defined by social productivity, > >demand and legal enforcement. > > > > > > > >>- Researching the proliferation of the `remix` > >>culture, he shows how > >>these networks have developed internal `productive > >>capacities` to > >>intervene, produce and circulate new cultural > forms. > >>His collection of > >>`Kaante Laga Ke` versions clearly gestured towards > >>an increasingly > >>complicated matrix. > >> > >> > > > >All commodity production does engengender > 'productive > >capacities' for production of new forms and > products. > > > >These are common to all commodity production. The > only > >difference is the covert struggle against the > existing > >legal framework. Celebration and valoristaion of > >commodity economy, in all its forms has its own > >implications. > > > >Milton Friedman could openly say that smugglers do > >great good to society for they break the > >artificial barriers to the free growth of commodity > >economy. He too followed the logic of commodity > >economy > >to its obvious conclusion. > > > >But does it make commodity production any more > >enticing? > > > > > > > >>- Now with this new phase, he is opening up a new > >>realm (the realm that > >>was opened up in Peter Manuel's Cassette Culture). > >>This is a world of > >>so called `regional music`. Here, singers, > >>musicians, sound engineers, > >>small time dealers, locality studios combine to > >>produce an extremely > >>vibrant music culture for the `mobile-migrant` > world > >>of labour and the > >>mohalla (dense habitations outside of the planned > >>grids). You can listen > >>to these songs on a public scale in Delhi during > >>holi, Chatt festival, etc. > >> > >> > > > >A 'vibrant music culture for the 'mobile migrant' > === message truncated === __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com From jeebesh at sarai.net Wed Feb 23 14:27:37 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Wed, 23 Feb 2005 14:27:37 +0530 Subject: [Commons-Law] IP Conference Audio Message-ID: <421C4581.1010806@sarai.net> Dear All, Finally a managable version of all the audio recordings of the `Contested Commons/ Trespassing Publics' is up. The link: http://www.sarai.net/events/ip_conf/ip_conf.htm We will also upload other interviews and conversations made during the conference. (it is being worked on). Keep a tab on the link. all the best Jeebesh From prabhuram at gmail.com Thu Feb 24 15:40:03 2005 From: prabhuram at gmail.com (Ram) Date: Thu, 24 Feb 2005 11:10:03 +0100 Subject: [Commons-Law] Patent row: Pfizer sues Ranbaxy In-Reply-To: <68752c9f05022401525d476cd8@mail.gmail.com> References: <68752c9f05022401525d476cd8@mail.gmail.com> Message-ID: <68752c9f05022402103889af95@mail.gmail.com> A probable sign of the times ahead for India! >From Business Standard: Patent row: Pfizer sues Ranbaxy Alleging infringement of its patent on Accupril with annual sales of $550mn, Pfizer has taken Ranbaxy Laboratories to court in the US, alleging infringement of its patent on Accupril (generic name: quinapril), an anti-hypertensive with annual sales of $550 million. Teva of Israel had launched generic quinapril made by Ranbaxy in the US in December 2004. The Ranbaxy spokesperson was not available for comment, though senior company functionaries confirmed the lawsuit had been filed. Repeated calls to Ranbaxy's US office yielded no response. A CLSA Asia-Pacific Markets report said Pfizer filed the lawsuit in the district court of New Jersey on January 28, claiming Ranbaxy's quinapril formulation contained an ingredient that led to the infringement of a process patented by it. It is learnt Pfizer has patented the use of lactose and microcrystalline cellulose for the stabilisation of quinapril. Otherwise, it can degrade while tableting. In its lawsuit, Pfizer has claimed the quinapril made by Ranbaxy also uses microcrytalline cellulose, which is an infringement of its patent. Ranbaxy is yet to file a reply to the charges. It is worth noting that Teva had earlier challenged the same process patent, which is valid till 2007. But the patent was upheld. Teva had gone on appeal against the decision. This prompted Teva to launch Ranbaxy's quinapril in the US. It is known to have captured a market of over 40 per cent since then. Other pharmaceutical companies are also known to have launched their quinapril in the market. About three years ago, Ranbaxy had also filed a patent application on stablising pharmaceutical compositions of ACE inhibitors like quinapril. Ranbaxy's patent claims that one of the agents the company would use is microcrystalline cellulose. However, it is not clear if this patent has been granted. Quinapril is not the only product over which Pfizer and Ranbaxy are locked in a legal battle. Ranbaxy has also challenged patents held by Pfizer on Lipitor, the world's largest selling drug with an annual turnover of $10 billion. Source: Business Standard From RobinManuel at aol.com Thu Feb 24 18:58:50 2005 From: RobinManuel at aol.com (RobinManuel at aol.com) Date: Thu, 24 Feb 2005 08:28:50 EST Subject: [Commons-Law] digest Message-ID: How can I get the postings in digest form rather than individual messages? :::Peter Manuel From anivar.aravind at gmail.com Sun Feb 27 14:01:23 2005 From: anivar.aravind at gmail.com (Anivar Aravind) Date: Sun, 27 Feb 2005 14:01:23 +0530 Subject: [Commons-Law] Remixing Culture: An Interview with Lawrence Lessig In-Reply-To: <35f96d4705022700306b2ed9e9@mail.gmail.com> References: <35f96d4705022700306b2ed9e9@mail.gmail.com> Message-ID: <35f96d470502270031786c37e5@mail.gmail.com> Interview with Lawrence lessig on Remixing Culture: http://www.oreillynet.com/pub/a/policy/2005/02/24/lessig.html What do you get when you mix P2P, inexpensive digital input devices, open source software, easy editing tools, and reasonably affordable bandwidth? Potentially, you get what Lawrence Lessig calls remix culture: a rich, diverse outpouring of creativity based on creativity. This is not a certain future, however. Peer-to-peer is on the verge of being effectively outlawed. Continuation of the current copyright regime would mean that vast quantities of creative content will be forever locked away from remix artists. Lessig is joining the battle for the remix future on several fronts: the court battle on the legality of P2P; another legal battle to free "orphan works" from their copyright gulag; rolling out new Creative Commons "sampling licenses" with the help of big-name artists like David Byrne; and supporting the "free culture" work of Brazilian musician and culture minister Gilberto Gil toward a society based on freedom of culture. Full Text is on : http://www.oreillynet.com/pub/a/policy/2005/02/24/lessig.html Slash doted Page: http://yro.slashdot.org/yro/05/02/27/0457219.shtml?tid=123&tid=153&tid=155&tid=158 ~regards Anivar Aravind