From lawrence at altlawforum.org Mon Jan 3 15:34:06 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Mon, 03 Jan 2005 15:34:06 +0530 Subject: [Commons-Law] "The Contested Commons/ Trespassing Publics" - Public Lecture Series In-Reply-To: <41BD8B67.6000901@sarai.net> Message-ID: Hi all Sending this again to remind people that if you are in Delhi during this period, do feel free to attend and feel free to invite your friends Lawrence "The Contested Commons/ Trespassing Publics" - *Public Lecture Series* The Public Service Broadcasting Trust, the Sarai Programme of the CSDS, Delhi and Alternative Law Forum, Bangalore present a series of three public lectures by world renowned scholars, which examine the fate of the commons after new conflicts over the public domain, and intellectual property. I. 6th January, 2005 Thursday, 7 pm, Auditorium, India Habitat Center, Lodi Road, Delhi * "Between Anarchy and Oligarchy: The Prospects for Sovereignty and Democracy in a Connected World "* Prof. Siva Vaidyanathan, New York University Information communication technologies have collapsed distances and lowered the price of connections and transactions around the world. We have only just begun making sense of the changes wrought by the new methods and habits fostered by these technologies. But we have no shortage of grand, totalizing visions that aim to capture the changes we are experiencing. In the 1990s we went through a phase dominated by naive visions of globalized monoculture and consensus, with the "end of history" considered to be the apex of "cultural evolution." Since 2001 the world has been viewed by some (Bush and Bin Laden, chiefly) as torn among "Civilizations." Now we hear explicit calls for a new Western imperialism, based on assumptions of universal benevolence. In opposition to such panicked or triumphal calls for a New World Order, Antonio Negri and Michael Hardt have issued a description of a new global anarchistic state of mind ("Empire" and "Multitude") based on the emerging forms of opposition to the mainstream forms of globalized corporate centralization. This paper finds fault with both Bush and Negri. It argues that efforts to create a world polarized on models of oligarchy and anarchy do not enrich most lives in meaningful ways. Instead, this paper argues for a careful consideration of the democratic potential of the new information ecosystems, and points out specific points of hope and models of optimism that can guide our global future toward a more just state, opening possibilities without sacrificing the granularity of the local, the specific, and the experimental. Siva Vaidyanathan is a well-known cultural historian, media scholar and public intellectual. . He is the author of the classic Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity (New York University Press, 2001) II. 7th January, 2005 Friday, 7 pm, Auditorium, India Habitat Center, Lodi Road, Delhi * "U.S Path to Wealth and Power: Intellectual Piracy and the making of America" * Prof. Doron Ben-Atar Fordham University During the first decades of America's existence as a nation, private citizens, voluntary associations, and government officials encouraged the smuggling of European inventions and artisans to the New World. These actions openly violated the intellectual property regimes of European nations. At the same time, the young republic was developing policies that set new standards for protecting industrial innovations. The American patent law of 1790 restricted patents exclusively to original inventors and established the principle that prior use anywhere in the world was grounds for invalidating a patent. But the story behind the story is a little more complicated - and leaders of the developing world would be wise to look more closely at how the American system operated in its first 50 years. In theory the United States pioneered a new standard of intellectual property that set the highest possible requirements for patent protection-worldwide originality and novelty. In practice, the country encouraged widespread intellectual piracy and industrial espionage. Piracy took place with the full knowledge and sometimes even aggressive encouragement of government officials. Congress never protected the intellectual property of European authors and inventors, and Americans did not pay for the reprinting of literary works and unlicensed use of patented inventions. What fueled 19th century American boom was a dual system of principled commitment to an intellectual property regime combined with absence of commitment to enforce these laws. This ambiguous order generated innovation by promising patent monopolies. At the same time, by declining to crack down on technology pirates, it allowed for rapid dissemination of innovation that made American products better and cheaper. Doron Ben-Atar is professor of history at Fordham University and co-director of Crossroads of Revolution to Cradle of Reform: Litchfield Connecticut 1751-1833. He has won numerous grants and awards, including most recently from the Dorothy and Lewis B. Cullman Center for Scholars and Writers at the New York public library. He is the author of numerous articles and a guest speaker on radio and television stations in the New York area. Ben-Atar's books include The Origins of Jeffersonian Commercial Policy and Diplomacy (Macmillan 1993), Federalists Reconsidered (University Press of Virginia, 1998) and Trade Secrets: Intellectual Piracy and the Origins of American Industrial Power (Yale University Press, 2004). III. 8th January, 2005 Saturday, 7 pm, Auditorium, India Habitat Center, Lodi Road, Delhi *"Magna Carta and the Commons"* Peter Linebaugh University of Toledo Magna Carta has been ignored as a medieval document of little relevance to the modern world at best, or at worst it has been derided as a false facade of liberal intention by Anglo imperialism. Partly as a result of this neglect, fundamental protections against tyranny and aggression have been eroded, such as habeas corpus, trial by jury, prohibition of torture, and due process of law. These cannot be restored without the root and branch recovery of the entire Charter of Liberty which includes the Charter of the Forest. This lost but extraordinary document holds a constitutional key to the future of humanity insofar as it provides protections for the whole earth's commons, particularly its hydrocarbon energy resources, whether these take the form of wood, coal, or petroleum. The key is turned by the women of the planet in Chiapas, Nigeria, India (to name a few places) who have taken the lead in the process of re-commoning what has been privatized and profiteered. Hence, the significance of "widow's estovers" in the Magna Carta as revised after 9/11! Peter Linebaugh is Professor of History at the University of Toledo in Ohio. He is the author of The London Hanged, co-author of The Many Headed Hydra, an editor of Albion's Fatal Tree, and forthcoming studies of the Irish insurrectionist, Edward Despard, as well as Magna Carta. He was raised and educated between two empires, British and American. Schooled in London in the 1940s, tested in Cattaraugus (New York) and Muskogee (Oklahoma) during the 1950s, he finished secondary school at the Karachi Grammar School, before matriculating at Swarthmore College, the liberal, Quaker, college in Pennsylvania. Active there in the civil rights struggle, he then removed to Columbia Univesity in New York until anti-war upheavals of May 1968 when, shaking the dust from his feet, he joined E.P. Thompson at the Centre for the Study of Social History at the University of Warwick. An educator who respects the organizer and the agitator, he has published in the Nation, Viet-Report, New Left Review, Times Literary Supplement, Midnight Notes, and his occasional essays may be read on www.CounterPunch. org. - ALL ARE INVITED - _______________________________________________ commons-law mailing list commons-law at sarai.net https://mail.sarai.net/mailman/listinfo/commons-law ------ End of Forwarded Message From sudhir at circuit.sarai.net Mon Jan 3 16:45:31 2005 From: sudhir at circuit.sarai.net (sudhir at circuit.sarai.net) Date: Mon, 3 Jan 2005 12:15:31 +0100 (CET) Subject: [Commons-Law] On Google's digitizing project Message-ID: <1294.203.101.61.67.1104750931.squirrel@mail.sarai.net> Dear all There was a brief discussion earlier on this list on Google's new library project. What follows below is Peter Suber's analysis of the shape this project is likely to take - the strategic use of IP protection [both copyright and patent law] together with technical locks will ensure that Google allows free public access while maintaining its advertising revenue stream! Best Sudhir Google's gigantic library project http://www.earlham.edu/~peters/fos/newsletter/01-02-05.htm Just as we were digesting the impact of Google Scholar (announced November 18) we had to start digesting Google's new and much larger project to digitize at least 15 million print books for free full-text searching and, in some cases, free full-text reading (announced December 14). Five major research libraries have agreed to loan Google books for the gigantic project: Harvard, Stanford, University of Michigan, Oxford, and the New York Public Library (NYPL). Google says that no more libraries are on its list at the moment, but it's always willing to hear from libraries with special collections that Google might crawl. Some of the scanned books will be under copyright and some will not. When copyrighted books come up in a search, Google will display a full citation and up to three passages of text containing the searchstring. It will also link to nearby libraries where the book can be borrowed and to Amazon for users who would rather buy a copy. For public-domain books, Google will display passages of text containing the searchstring and a link to the full-text book for reading. When you reach the readable full-text, you'll find that Google does not allow downloading or printing. Moreover, early reports suggest that these readable books will be image files, not text files, and hence not searchable outside the Google index unless you do your own OCR. (Google is unlikely to offer full-text public-domain books in a more convenient form, since that would make them available for indexing in rival search engines.) To get all this content into its index, Google will digitize the volumes at its own expense. At roughly $10 per volume, 15 million books will cost it $150 million. The deal is non-exclusive, so that any other company with that kind of money could digitize the same books. Yahoo and Microsoft may be considering it; the Internet Archive is already doing something similar (more below). Google will earn money on the deal at least by bringing in new users, which will translate into greater ad revenue. It may eventually place ads in its digital copies of the scanned books, but hasn't yet decided whether to do so. Google will share ad revenue from copyrighted books with publishers. But it will not, apparently, share revenue with participating libraries. Google has applied for a patent on a method for providing "subscription-like access" to copyrighted content, which hints at another business model for covering its costs. At least at first, books will rarely come up near the top of a hit list, if only because very few other sites will link to them. Google hasn't yet announced a separate interface or relevancy algorithm for searching books, but it may have to develop at least one of them in order to attract enough book-searching traffic to repay its investment. (It already has a special syntax; throw the word "book" into a search, and the hits from scanned books will be segregated for separate viewing.) The five participating libraries will get free copies of the bits scanned from their books. All of them plan to offer enhanced access to their own patrons, for example, printing and downloading of public-domain texts, and integration into the library catalogue. A few news reports suggest that some of the libraries might provide the general public with OA to the full-texts. But so far none of the participating libraries has explicitly said that it would do so. I'm still unsure whether the Google contract even permits it. Michigan is letting Google scan all 7 million of its books, excluding only some rare books that might be damaged by the scanning process. The other libraries are only letting Google scan subsets of their collections and will open the gate further if they are happy with the experiment. Oxford and NYPL are offering only public-domain books; Stanford is offering 2 million of its 8 million volumes; and Harvard is offering only 40,000 of its 15 million volumes. Scanning Michigan's 7 million books will take about six years. If that seems like a long time, consider that the Michigan collection occupies about 132 shelf-miles of books. If Google ends up scanning the entirety of the Harvard or Stanford collection, let alone both, the job will take even longer. Books will appear in the Google index roughly as they are scanned; you won't have to wait years to see the effect on your research. This is the project that has been known in some circles as Project Ocean, ever since John Markoff used that term in the New York Times on February 1, 2004. But Google is no longer using that name and, strangely, given the project's magnitude, Google hasn't given it a new name either. It will simply be a part of Google Print --the largest part and the part extending the program from publishers to libraries. The project is not yet integrated with Google Scholar, though integration would enhance both projects. The library project is breathtaking in its scope and cost, and revolutionary in its implications. It's significant for half a dozen reasons. I'm sure other reasons will soon be apparent to everyone. * It will hugely expand the universe of free online books for reading and expand it even further for searching. Even if the project were limited to Michigan's 7 million books, it would far exceed what most libraries conceive to be a core collection. We don't know what it will do to teaching and research, let alone pleasure reading and autodidacticism. But we can be sure that removing access barriers to collections of this magnitude and utility will change basic practices. Because of its scale, this is a quantitative change that will bring qualitative changes in its wake. * While a handful of governments and corporations had the money and --I contend-- the interest to undertake this project, none had stepped up to the plate. Google was willing to spend big to make this happen, and it was willing before anyone else. If there are financial risks, copyright thickets, and logistical problems, and there undoubtedly are, Google had the courage and vision to see that risks were worth taking and the problems worth solving. (This doesn't detract from earlier digitization projects from others, some of them very large; none is this large.) * The project will give Google an unmatched critical mass of important texts for scholarly research. That will attract researchers. That will in turn increase the importance to researchers of having their content indexed by Google, through Google Scholar, CrossRef Search, or routine crawling. There are two ways to make content more visible: index it in the right tools, and draw more eyeballs to the tools that already index it. Google has long since learned the secret of doing both at once, and this project will be a huge leap forward on both fronts. * Now or soon, if you make your work OA, then Google will find it, crawl it, and add it to its index. Hence, the eyeball-attracting critical mass it is developing also operates as an incentive for authors and publishers to provide OA to their work. * This project makes copyrighted and revenue-producing books freely accessible to some degree online (at least for searching, and for reading relevant extracts) without antagonizing publishers. If free online searching and sampling increase net sales for some kinds of books --already proved for many kinds of books-- then this project will bring this fact home to many more publishers. * It's now more important than ever to protect and expand the public domain. Projects like this show vividly what is pirated from the public when the public domain is shrunk by retroactive extensions of the term of copyright. From srinivas at southcentre.org Sat Jan 1 18:22:34 2005 From: srinivas at southcentre.org (srinivas at southcentre.org) Date: Sat, 1 Jan 2005 13:52:34 +0100 Subject: [Commons-Law] UNESCO (Draft) Convention on Cultural Doversity In-Reply-To: <20050101063009.C756D29105A@mail.sarai.net> Message-ID: Please find the attached paper - a brief analysis of the UNESCO (Draft) Convention on Cultural Doversity. This is a work in progress. There have been suggestions that the Draft should be modified. Frankly speaking I wonder how relevant will be such a treaty even after taking into account the suggestions. I am skeptical about the state centric perspective and in my view the issue of cultural diversity needs a different approach. States may do more harm than good with all the good intentions. ravi srinivas K.Ravi Srinivas Post Doctoral Fellow IPR Policy Research & Development Program South Centre 17-19 Chemin Du Champ d'Anier 1209 Petit Saconnex Geneva Postal Address K.Ravi Srinivas South Centre CP 228 1211 Geneva 19 Switzerland Tel: +41 22 791 80 50 ext 37 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/20050101/58e47c9b/attachment.html -------------- next part -------------- A non-text attachment was scrubbed... Name: unescodraftreview.doc Type: application/octet-stream Size: 43520 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20050101/58e47c9b/attachment.obj From jeebesh at sarai.net Wed Jan 5 13:08:09 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Wed, 05 Jan 2005 13:08:09 +0530 Subject: [Commons-Law] GNU/Linux - Milestone on the Way to the GPL Society Message-ID: <41DB9961.3030802@sarai.net> written in 2000 by stefan merten (oekonux), now translated from german into english: GNU/Linux - Milestone on the Way to the GPL Society Stefan Merten > http://www.oekonux.org/texts/meilenstein/english.html From lawrence at altlawforum.org Fri Jan 7 22:04:51 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Fri, 07 Jan 2005 22:04:51 +0530 Subject: [Commons-Law] Bill Gates CNEt interview -- IP critics are "new modern-day sort of communists" In-Reply-To: <41DDFF37.9020207@cptech.org> Message-ID: ------ Forwarded Message From: James Love Date: Thu, 06 Jan 2005 22:17:11 -0500 To: IP-Health Subject: [Ip-health] Bill Gates CNEt interview -- IP critics are "new modern-day sort of communists" In this interview, Bill Gates refers to critics of patent and copyright laws as communists. Jamie http://news.com.com/Gates+taking+a+seat+in+your+den/2008-1041_3-5514121.html Gates taking a seat in your den January 5, 2005, By Michael Kanellos, Staff Writer, CNET News.com LAS VEGAS--Bill Gates is coming to your living room, whether you like it or not. ...... CNET Question: In recent years, there's been a lot of people clamoring to reform and restrict intellectual-property rights. It started out with just a few people, but now there are a bunch of advocates saying, "We've got to look at patents, we've got to look at copyrights." What's driving this, and do you think intellectual-property laws need to be reformed? Bill Gates Answer: No, I'd say that of the world's economies, there's more that believe in intellectual property today than ever. There are fewer communists in the world today than there were. There are some new modern-day sort of communists who want to get rid of the incentive for musicians and moviemakers and software makers under various guises. They don't think that those incentives should exist. . . . And this debate will always be there. I'd be the first to say that the patent system can always be tuned--including the U.S. patent system. There are some goals to cap some reform elements. But the idea that the United States has led in creating companies, creating jobs, because we've had the best intellectual-property system--there's no doubt about that in my mind, and when people say they want to be the most competitive economy, they've got to have the incentive system. Intellectual property is the incentive system for the products of the future. -- James Love, Director, CPTech, http://www.cptech.org Consumer Project on Technology in Washington, DC PO Box 19367, Washington, DC 20036, USA Tel.: 1.202.387.8030, fax: 1.202.234.5176 Consumer Project on Technology in Geneva 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel: +41 22 791 6727 Mobile +1.202.361.3040 james.love at cptech.org _______________________________________________ Ip-health mailing list Ip-health at lists.essential.org http://lists.essential.org/mailman/listinfo/ip-health ------ End of Forwarded Message From prayas.abhinav at gmail.com Mon Jan 10 14:41:28 2005 From: prayas.abhinav at gmail.com (Prayas Abhinav) Date: Mon, 10 Jan 2005 14:41:28 +0530 Subject: [Commons-Law] A call for papers: a conference on free software & free culture Message-ID: <825bb7b0050110011112c77b1d@mail.gmail.com> Dear all, I am posting details about a conference I am organizing in Ahmedabad in on february 5th, 6th and 13th. Richard Stallman - known as the passionate free software advocate - will be speaking on the 13th. Everyone is invited to be a part of this event... With regards, Prayas Encl: Details Link: http://crimsonfeet.recut.org/article259.html From anasuya_s at yahoo.com Mon Jan 10 19:15:34 2005 From: anasuya_s at yahoo.com (Anasuya Sengupta) Date: Mon, 10 Jan 2005 19:15:34 +0530 Subject: [Commons-Law] In answer to Bill Gates - we're creative commonists In-Reply-To: References: Message-ID: <41E286FE.20504@yahoo.com> http://www.wired.com/news/culture/0,1284,66209,00.html - and please don't miss the great logos on the left side of the page. anasuya > > From joy at sarai.net Tue Jan 11 01:07:57 2005 From: joy at sarai.net (joy at sarai.net) Date: Mon, 10 Jan 2005 20:37:57 +0100 (CET) Subject: [Commons-Law] Notes on Contested Commons Conference Message-ID: <1090.203.101.2.135.1105385877.squirrel@mail.sarai.net> Traditional medicines, software, entertainment commodities are different trajectories of intellectual property [IP]. If we don’t see all these things from the point of view of IP, neither even from the side of knowledge rather as a flowing social experience and social good we might be able to have different perspective to understand all these forms. The objective is to share and develop all these without any barrier. Some how software community have found interesting mechanism, rather than calling it solution, to safeguard such interest of share and access of codes through use of IP, that is copy right law by deploying licensing mechanism. Creative commons license is also designed in a similar fashion. Though I have problem with these and I will come back to it later. But entertainment commodity circulation has found yet another model for easy flow. The model is piracy. It is true for software as well. Capitalist society, unlike aristocracy, makes desire free and available to every one in the society at almost equal level. But the access is totally marked by class abilities. In such situation, commodity market comes up with all kind of cheaper solutions as well. Fake goods and piracy are two typical example of such condition. It is not that necessity is not linked with it, but one does not need fake versions of branded products for basic necessity. There comes the standardised understanding of living condition in hierarchical society and its desire. There are two kinds of fake goods, one that is fake and don’t claim to be original by its look and market circle. Another is trying to disguise as original and exists within the market of the original. Both of them have their class representation. A badly made backpack with incorrect Lotto logo sold in weekly market has a different commodity status from well made perfectly printed fake backpack sold in Lajpat Nagar market. They both are cheaper than original, but again within themselves one is cheaper than other. But all of them some how try to identify with the original brand. This brand is like the most successful boy in the locality, or a successful singer whom another thousand copy. It is the success and perfection that determines the movement of human activity in present society. Similarly video/audio tape and later CD/DVD technology made copying films and music cheap and made it cheaply available to public who is not in a condition or not willing to spend money to go to cinema hall. Copies can be made and are also made in a legal way, that is, by paying royalty, tax, duties, interest and spending many other liabilities. But in that case, going to cinema hall becomes cheaper than buying such copies. Then if some one has to make profit in copy market, he has to bypass all these liabilities. This is what we call piracy. Out sourcing by big companies makes this practice more complex. It is very normal in present big companies that instead of producing themselves they outsource the production to smaller players who can afford to produce at cheaper rate using non-industrial spaces to avoid lot of industrial liability like permanent wage to factory rent at industrial rate. And also they fight with each other. Competing forces will always try to find short cuts. It is part of capitalist mode of existence. I presume due to increasing lack of simple commodity based society capitalist production deploys illegality more sharply to fight each other. So these events are normal in market production and distribution network. But what it does, it shows us the possibility of production of commodities rather useful goods at cheaper cost. And that fascinates me. It is not the network, not messiness, these things are any case there in any production and distribution system in present world whether big or small. But it is this ability of such production and distribution network to reduce cost interests me. It shows us that it doesn’t cost much to produce any commodity if liabilities for proprietarily claims are not spent. It is not only intellectual property but also other forms of property as well. As far as creativity is concerned, bad translation of legal films also create interesting interpretative recessions. Hindi version of Speed and Jurassic Park are good enough example for that. So it is the quality of usage not piracy. Piracy only increases this possibility of usage many fold. But it is the cost that enables such elaborate usage. It links to the issue raised on medicine that pharma companies don’t disclose their cost of production that can be possibly much less than the market cost of the medicine. But because of the patent regime it is not possible to determine actual cost of those medicines. How can we negotiate that? Or can we at all negotiate that. Thus discourse around medicine ends up with policy making and policy changing. The idea of share culture dries up by the time we reach medicine or for that matter traditional knowledge. It seems that the way IP helps to liberate computer code might not at all help to liberate medicine o traditional knowledge. Then does it mean the sharing possibilities end there? Is there any other way to look at other than IP? What is the problem with IP and its different avatar of licensing models? There comes my philosophical problem with GPL and Creative Commons. These are sharing models. But before sharing it ensures the owner of the goods, that is knowledge, will not diminish if that person shares that object. So in the case of another object that would diminish through share will we stop sharing? If GPL and Creative Commons license are strategy to defend sharing dynamics of an object that does not diminish through share, in that case we need to find another model for those objects which might diminish through share. What that model can be? There I think commoning is the solution. Though I don’t think Magna Carta defends a rigorous practice of commoning, it merely symbolizes it, and can still survive like a fossil without any hint of commons. For me commoing is philosophical and spiritual condition where every one is ready to share in spite of loss and every one respects that sharing ethos. Every object has its own production and circulation cycle, there can not be one single model to produce and share it. Knowledge to predict Tsunami by Andaman Tribes might need hundred years to learn. Lets respect that process and request them to inform us in crisis, rather than trying to know it in a NIIT type crash course and share it through GPL. Best Joy From joy at sarai.net Tue Jan 11 01:24:51 2005 From: joy at sarai.net (Joy) Date: Tue, 11 Jan 2005 01:24:51 +0530 Subject: [Commons-Law] Notes on Contested Commons Conference In-Reply-To: <7BEB398F-6343-11D9-B417-000D9351ECAA@pobox.com> References: <1090.203.101.2.135.1105385877.squirrel@mail.sarai.net> <7BEB398F-6343-11D9-B417-000D9351ECAA@pobox.com> Message-ID: <41E2DD8B.7070209@sarai.net> It is said that one does not loose anything while sharing a piece of code or any form of information, GPL and Creative Commons provides strategy to protect the sharing culture on the basis of this logic. It possibly work in all kinds of intangible goods, say knowledge. But if the owner of the goods looses part of it or the whole goods, then should we stop sharing? GPL and Creative Commons provide no solution for that. These models might work only with intellectual property. But for other kind of sharing, say water, electricity, food, medicine one possibly need to think of other forms of sharing models possibly totally out of the domain of legality. Joy +++++++++++++++++ Siva Vaidhyanathan wrote: > I am not sure I understand this part. Could you please elaborate? > > Siva > > On Jan 10, 2005, at 14:37, joy at sarai.net wrote: > >> There comes my philosophical problem with GPL and Creative Commons. >> These >> are sharing models. But before sharing it ensures the owner of the >> goods, >> that is knowledge, will not diminish if that person shares that >> object. So >> in the case of another object that would diminish through share will we >> stop sharing? If GPL and Creative Commons license are strategy to defend >> sharing dynamics of an object that does not diminish through share, in >> that case we need to find another model for those objects which might >> diminish through share. > > > > Siva Vaidhyanathan > Department of Culture and Communication > New York University > Weblog: http://sivacracy.net > > Author of Copyrights and Copywrongs (New York University Press, 2001) > and The Anarchist in the Library (Basic Books, 2004) > From lawrence at altlawforum.org Wed Jan 12 15:44:12 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Wed, 12 Jan 2005 15:44:12 +0530 Subject: [Commons-Law] Pepsi claims right over dil maange more Message-ID: Dil Maange More in legal wrangle By: Mayank Shekhar January 5, 2005 Ananth Mahadevan¹s Dil Maange More, which opened in the theatres last Friday, has received a rap in the knuckles from the cola giant Pepsi for using its copyrighted commercial tagline ³Yeh Dil Maange More² in the film¹s title. In response to Pepsi¹s legal petition, the Delhi High Court yesterday passed an order restraining the film from licensing its overseas distribution release and video rights. While the soft drink company, in a terse release stated, ³The injunction reinforces our registered copyright of ŒYeh Dil Maange More¹, which we have used for several years in the course of our business,² filmmaker Mahadevan says the ³the legal injunction actually has no bearing on us. The court order clearly says that it would be effective only if the overseas right has not already been granted to somebody. We have already released Dil Maange More abroad. So the injunction doesn¹t hold.² As to the looming controversy and why he chose to use the famous Pepsi ad-line ‹ as a trademark issue was imminent in such a situation ‹ Mahadevan says, ³We¹ve been shouting from the rooftops since we launched the film at IIFA last year that our film is called Dil Maange More. In fact our marketing team had approached Pepsi for a tie-up, given the movie¹s title and that the lead actor Shahid Kapur had endorsed the product before. So there¹s no way that Pepsi was not aware of our film¹s registered title. If they¹d expressed a problem before, we would have gracefully withdrawn the name of the film. Why did they suddenly wake up at the time of Dil Maange More¹s release?² The questions e-mailed to Pepsi received no reply. However, Mahadevan remains adamant. He says, ³There is absolutely no question of changing the film¹s title now.² From srinivas at southcentre.org Wed Jan 12 17:45:22 2005 From: srinivas at southcentre.org (srinivas at southcentre.org) Date: Wed, 12 Jan 2005 13:15:22 +0100 Subject: [Commons-Law] Pepsi & Film Title Message-ID: A tamil film was titled as Ullam Ketkume More which is similar to the hindi film title in meaning.I understand that Pepsi opposed the title Pepsi first and the title was changed to the one mentioned above. Since the film has not been release i do not the fate of the title. But Pepsi cannot raise the issue about the hindi film title now as the principle of estoppel can be applied here. Further the question whether the copyright applies to film titles also cannot be ignored. If my understanding is right in a case it was decided that infosys could not prevent a company manufacturing computers from using infosys in its name. ravi srinivas 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/20050112/1fc4a93a/attachment.html From shwetashree at hotmail.com Wed Jan 12 18:12:02 2005 From: shwetashree at hotmail.com (Shwetasree Majumder) Date: Wed, 12 Jan 2005 12:42:02 +0000 Subject: [Commons-Law] (no subject) Message-ID: Dear All, Here's an invite to a moot court at the IIT Auditorium on Sunday, details of which are attached. There is a fairly eminent line-up of participants including Sir Hugh Laddie, the Chief Judge of the Patent Court of England Judge Dr. Meier-Beck of the Patent Senate (10th Senate) of the German Federal Supreme Court, Prof. Martin Adelman, Professor of Law, Co-Director of the Intellectual Property Law Program and Director of the Dean Dinwoody Center for Intellectual Property Studies, Mr. Pravin Anand, Mr. Lakhsmi Kumaran, etc. There's no registration fee and there's also free lunch :-) Please email me your confirmations and feel free to spread the word... Shwetasree _________________________________________________________________ Connect with 1000s of singles. http://www.bharatmatrimony.com/cgi-bin/bmclicks1.cgi?74 Receive chat requests. Instant message Now. -------------- next part -------------- A non-text attachment was scrubbed... Name: Delhi Moot Court.doc Type: application/msword Size: 460800 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20050112/8154976a/attachment.doc From shwetashree at hotmail.com Wed Jan 12 18:12:02 2005 From: shwetashree at hotmail.com (Shwetasree Majumder) Date: Wed, 12 Jan 2005 12:42:02 +0000 Subject: [Commons-Law] (no subject) Message-ID: Dear All, Here's an invite to a moot court at the IIT Auditorium on Sunday, details of which are attached. There is a fairly eminent line-up of participants including Sir Hugh Laddie, the Chief Judge of the Patent Court of England Judge Dr. Meier-Beck of the Patent Senate (10th Senate) of the German Federal Supreme Court, Prof. Martin Adelman, Professor of Law, Co-Director of the Intellectual Property Law Program and Director of the Dean Dinwoody Center for Intellectual Property Studies, Mr. Pravin Anand, Mr. Lakhsmi Kumaran, etc. There's no registration fee and there's also free lunch :-) Please email me your confirmations and feel free to spread the word... Shwetasree _________________________________________________________________ Connect with 1000s of singles. http://www.bharatmatrimony.com/cgi-bin/bmclicks1.cgi?74 Receive chat requests. Instant message Now. -------------- next part -------------- A non-text attachment was scrubbed... Name: Delhi Moot Court.doc Type: application/msword Size: 460800 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20050112/8154976a/attachment-0001.doc From shwetashree at hotmail.com Thu Jan 13 17:26:16 2005 From: shwetashree at hotmail.com (Shwetasree Majumder) Date: Thu, 13 Jan 2005 11:56:16 +0000 Subject: [Commons-Law] (no subject) Message-ID: Dear all, This is further to my posting on the IP workshop/ moot court on Sunday. Please send your confirmations to the following address: shwetasree at anandandanand.com Rahul and Taapsi, i've confirmed you guys. Thanks. Looking forward to seeing many of you. Do also let me know if any of you guys want the problem - its too big to attach but maybe lawrence can suggest a way in which i can put it all up without blocking too much space. Looking forward to seeing you, Shwetasree _________________________________________________________________ Manage information better. Optimise your tasks. http://www.microsoft.com/india/office/experience/ Experience MS Office System. From shwetashree at hotmail.com Thu Jan 13 17:26:16 2005 From: shwetashree at hotmail.com (Shwetasree Majumder) Date: Thu, 13 Jan 2005 11:56:16 +0000 Subject: [Commons-Law] (no subject) Message-ID: Dear all, This is further to my posting on the IP workshop/ moot court on Sunday. Please send your confirmations to the following address: shwetasree at anandandanand.com Rahul and Taapsi, i've confirmed you guys. Thanks. Looking forward to seeing many of you. Do also let me know if any of you guys want the problem - its too big to attach but maybe lawrence can suggest a way in which i can put it all up without blocking too much space. Looking forward to seeing you, Shwetasree _________________________________________________________________ Manage information better. Optimise your tasks. http://www.microsoft.com/india/office/experience/ Experience MS Office System. From mrinalinikpillai at gmail.com Wed Jan 19 10:41:20 2005 From: mrinalinikpillai at gmail.com (Mrinalini Kochupillai) Date: Wed, 19 Jan 2005 10:41:20 +0530 Subject: [Commons-Law] NY Times - India's Choice Message-ID: A good article that recently appeared in NY Times New York Times: Editorial: India's Choice January 18, 2005 For an AIDS patient in a poor country lucky enough to get antiretroviral treatment, chances are that the pills that stave off death come from India. Generic knockoffs of AIDS drugs made by Indian manufacturers - now treating patients in 200 countries - have brought the price of antiretroviral therapy down to $140 a year from $12,000. That luck may soon run out. India has become the world's supplier of cheap AIDS drugs because it has the necessary raw materials and a thriving and sophisticated copycat drug industry made possible by laws that grant patents to the process of making medicines, rather than to the drugs themselves. But when India signed the World Trade Organization's agreement on intellectual property in 1994, it was required to institute patents on products by Jan. 1, 2005. These rules have little to do with free trade and more to do with the lobbying power of the American and European pharmaceutical industries. India's government has issued rules that will effectively end the copycat industry for newer drugs. For the world's poor, this will be a double hit - cutting off the supply of affordable medicines and removing the generic competition that drives down the cost of brand-name drugs. But there is still a chance to fix the flaws in these rules, because they are contained in a decree that must be approved by Parliament. Heavily influenced by multinational and Indian drug makers eager to sell patented medicines to India's huge middle class, the decree is so tilted toward the pharmaceutical industry that it does not even take advantage of rights countries enjoy under the W.T.O. to protect public health. In November 2001, members of the World Trade Organization agreed that countries can issue compulsory licenses to permit generic production of patented drugs without the patent holder's agreement in order to protect public health, at home or abroad. But under the Indian decree, getting a compulsory license would be slow and difficult; each application would face a fight from multinational drug firms and the governments that do their bidding. India should adopt laws that expedite compulsory licenses, including allowing challenges to proceed after production begins instead of holding it up. In addition, India must close an important loophole affecting the sick overseas: under the current rules, Malawi, for example, could not import from India an inexpensive version of a medicine that is not under patent in Malawi. This needs to be changed. Industry lobbyists managed to insert two noxious provisions in the decree that go well beyond the W.T.O. rules. The decree would limit efforts to challenge patents before they take effect. Also, it is uncomfortably vague about whether companies could engage in "evergreening" - extending their patents by switching from a capsule to tablet, for example, or finding a new use for the product. This practice, a problem in America and elsewhere, extends monopolies and discourages innovation. While some drugs - those that existed before 1995 - will always be off patent in India, some widely used drugs are at risk. So are new generations of much more expensive AIDS drugs that will soon be needed worldwide as resistance builds to current medicines. If the decree is not changed before Parliament approves it, it will be very difficult for India to supply them. India's parliamentarians must keep in mind that this arcane dispute is actually a crucial battleground for the health of hundreds of millions of people in India and worldwide. http://www.nytimes.com/2005/01/18/opinion/18tues2.html?ex=1107077093&ei=1&en=bc729151e8d6b2eb From mrinalinikpillai at gmail.com Wed Jan 19 11:11:54 2005 From: mrinalinikpillai at gmail.com (Mrinalini Kochupillai) Date: Wed, 19 Jan 2005 11:11:54 +0530 Subject: [Commons-Law] MIP - Delhi HC and Exemplary Damages for IP infringement Message-ID: MIP Article: India in punitive damages first Emma Barraclough, Hong Kong - 16 January 2005 The Delhi High Court has opened the door to punitive and exemplary damages in India after it awarded an IP owner Rs5 lakh ($10,400) to discourage other potential infringers. On January 3 the Court awarded Time Incorporated Rs5 lakh in punitive and exemplary damages and Rs5 lakh to compensate for damage to reputation and goodwill after finding that a local company had infringed the international magazine's copyright and trade marks. Time applied for an injunction after the defendants began to publish a Hindi language magazine called Time Asia Sanskaran. Time accused them of hijacking its trade mark by using the same font, and misappropriating its goodwill by implying that the Hindi publication was the Indian edition of the international magazine. Handing down the decision, Justice RC Chopra said that the Court had to draw a distinction between compensatory damages and punitive damages. He wrote: "This Court has no hesitation in saying that the time has come when the Courts dealing with actions for infringement of trade marks, copyright, patents etc should not only grant compensatory damages but award punitive damages also with a view to discourage and dishearten law breakers who indulge in violations with impunity out of lust for money so that they realize that in case they are caught, they would be liable not only to reimburse the aggrieved party but would be liable to pay punitive damages also, which may spell financial disaster." And the judge added that he would have awarded higher punitive damages had the plaintiff claimed them. "This Court is of the view that the punitive damages should be really punitive and not flea bite and quantum thereof should depend on the flagrancy of infringement," said Justice Chopra in his decision. Pravin Anand, of Anand & Anand in Delhi, who advised Time Incorporated on the case, said the decision to award punitive damages for the first time in an IP case was "highly significant" for litigation in India. From taapzi at yahoo.com Wed Jan 19 23:19:48 2005 From: taapzi at yahoo.com (taapsi johri) Date: Wed, 19 Jan 2005 09:49:48 -0800 (PST) Subject: [Commons-Law] need clarification In-Reply-To: Message-ID: <20050119174948.88045.qmail@web50210.mail.yahoo.com> 'it is uncomfortably vague about whether companies could engage in "evergreening" - extending their patents by switching from a capsule to tablet, for example, or finding a new use for the product.' im a little confused over this product patent regime and pharma scope in this respect! lets take a situation, Assuming that X is an already existing compound known to be normally used for water softening (inspired from Merc V. Teva Pharma case!!) and now an application is filed under the present Indian patent regime for the same compound X but for use as a treatment for osteoporosis. the active ingredient of this medicament is X ..without any chnage. but there is a substantial change in the use for which it is being claimed in the new application. Now under the amendment done to S.3(d) "mere new use" wd be translated as: it should be a new innovation and not a mere discovery...in order to support a claim. Deletion of S.5 implies allowing product patents. So ideally this claim should be patentable as: use of X for the treatment of osteoporosis. But section 3(i) states: any process for the medicinal, surgical, curative, prophylactic [diagnostic, therapeutic] or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their eonomic value or that of their products. is not an invention within the scope of the Act. now the only possible "new use" of a drug is treatment! would this mean that any new use of an already existing compound known to be used for a purpose other than treatment even when eventualy found to be usefull for treament would still not be patentable? what purpose would the product patent solve in such case!! and isnt the purpose of the act defeated? if this is the situation then there would be no point for pharma companies to invest in R&D on existing compounds!..this is detrimental to the interest of a developing nation. what could be the other possible interpretations for S.3(i)? picked this up from the workshop we had at IITd! the Indian Judges too this position that any claim for 'use for treatment...' would be excluded from patentability. this is an extremely discouraging situation in my view. this kills incentive for innovation and research on already existing compounds. I am not very sure about the conclusion iv reached! there could be a very solid reason behind this provision being the way it is! id like to know wat. Mrinalini Kochupillai wrote: A good article that recently appeared in NY Times New York Times: Editorial: India's Choice January 18, 2005 For an AIDS patient in a poor country lucky enough to get antiretroviral treatment, chances are that the pills that stave off death come from India. Generic knockoffs of AIDS drugs made by Indian manufacturers - now treating patients in 200 countries - have brought the price of antiretroviral therapy down to $140 a year from $12,000. That luck may soon run out. India has become the world's supplier of cheap AIDS drugs because it has the necessary raw materials and a thriving and sophisticated copycat drug industry made possible by laws that grant patents to the process of making medicines, rather than to the drugs themselves. But when India signed the World Trade Organization's agreement on intellectual property in 1994, it was required to institute patents on products by Jan. 1, 2005. These rules have little to do with free trade and more to do with the lobbying power of the American and European pharmaceutical industries. India's government has issued rules that will effectively end the copycat industry for newer drugs. For the world's poor, this will be a double hit - cutting off the supply of affordable medicines and removing the generic competition that drives down the cost of brand-name drugs. But there is still a chance to fix the flaws in these rules, because they are contained in a decree that must be approved by Parliament. Heavily influenced by multinational and Indian drug makers eager to sell patented medicines to India's huge middle class, the decree is so tilted toward the pharmaceutical industry that it does not even take advantage of rights countries enjoy under the W.T.O. to protect public health. In November 2001, members of the World Trade Organization agreed that countries can issue compulsory licenses to permit generic production of patented drugs without the patent holder's agreement in order to protect public health, at home or abroad. But under the Indian decree, getting a compulsory license would be slow and difficult; each application would face a fight from multinational drug firms and the governments that do their bidding. India should adopt laws that expedite compulsory licenses, including allowing challenges to proceed after production begins instead of holding it up. In addition, India must close an important loophole affecting the sick overseas: under the current rules, Malawi, for example, could not import from India an inexpensive version of a medicine that is not under patent in Malawi. This needs to be changed. Industry lobbyists managed to insert two noxious provisions in the decree that go well beyond the W.T.O. rules. The decree would limit efforts to challenge patents before they take effect. Also, it is uncomfortably vague about whether companies could engage in "evergreening" - extending their patents by switching from a capsule to tablet, for example, or finding a new use for the product. This practice, a problem in America and elsewhere, extends monopolies and discourages innovation. While some drugs - those that existed before 1995 - will always be off patent in India, some widely used drugs are at risk. So are new generations of much more expensive AIDS drugs that will soon be needed worldwide as resistance builds to current medicines. If the decree is not changed before Parliament approves it, it will be very difficult for India to supply them. India's parliamentarians must keep in mind that this arcane dispute is actually a crucial battleground for the health of hundreds of millions of people in India and worldwide. http://www.nytimes.com/2005/01/18/opinion/18tues2.html?ex=1107077093&ei=1&en=bc729151e8d6b2eb _______________________________________________ commons-law mailing list commons-law at sarai.net https://mail.sarai.net/mailman/listinfo/commons-law --------------------------------- Do you Yahoo!? Take Yahoo! Mail with you! Get it on your mobile phone. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050119/344a2eca/attachment.html From jaynakothari at justice.com Fri Jan 21 19:38:45 2005 From: jaynakothari at justice.com (jaynakothari at justice.com) Date: Fri, 21 Jan 2005 06:08:45 -0800 (PST) Subject: [Commons-Law] Madras High Court ruling Message-ID: <20050121140849.29120.fh036.wm@smtp.sc0.cp.net> Came across this news report about an interesting ruling of the Madras High Court, which ordered temporary free supply of cancer drugs to low income group people, cheers, Jayna The link to the article is: http://www.thehindubusinessline.com/2005/01/21/stories/2005012101590400.htm MNCs told to supply `patented' anti-cancer drug Our Legal Correspondent Chennai , Jan. 20 WHILE multinational anti-cancer drug manufacturers had prevented Indian drug firms from distributing the life-saving medicine on the ground that they held the patent rights and had also been granted the exclusive marketing rights (EMR) for these drugs under the Patents Act, the Madras High Court has come to the rescue of these unfortunate sufferers. As an interim arrangement to ensure that these patients were able to obtain supply of the costly drugs, the court has ordered the foreign drug producers to arrange free supply of `Beta-crystalline' form of `Imatinib Mesylate' to all patients suffering from chronic myeloid leukaemia, and who were earning less than Rs 3,36,000 per month. The order delivered by a Division Bench comprising Mr Justice P.D. Dinakaran and Mr Justice S.R. Singaravelu was a sequel to appeals filed by the Indian drug companies against the foreign patent-holders in respect of the life-saving medicine praying for vacating the exparte order of injunction dated January 20, 2004 by a single judge in favour of the latter, which was later made absolute. In their suit, the respondents/plaintiffs (Novartis A.G. Schwarzwaldalee 215, Switzerland, their Indian associate, Novartis India Ltd, Mumbai & others) pleaded for a direction against the appellants herein (defendants in the suit), i.e., the Indian drug companies, for a permanent injunction restraining the Indian drug companies from selling the anti-cancer drug under the mark/name `Imatib', `IMALEK', `Imanis', `Zoleta' and `Temsan' so long as the EMR granted by the Controller of Patents on November 10, 2003 was subsisting. The respondents/plaintiffs, in all the suits, contended, inter alia, that the EMR conferred an exclusive right to sell the life-saving drug for a period of 5 years, or till an order was passed in the patent claim in India, whichever was earlier. They also contended that the element of `public interest' had also been taken care of for supply of free Glivec medicine by the programme called `Gipap', and, therefore, if injunction were not granted, they (respondents/plaintiffs) would suffer irreparable loss. Resisting the suits, the appellants/defendants submitted that the first plaintiff (Novartis A.G) had obtained patent in the US and Canada in respect of `Pyramidine derivatives and processes for preparation thereof'. No patent for `Imatinib Mesylate' was ever filed in India, and, therefore, there was no question of the plaintiffs being entitled to any protection on the basis of any patent that might still subsist abroad for `Imatinib' per se or for `Mesylate salt of Imatinib'. The EMR granted was vague and indefinite, the appellants submitted. The cost of one capsule marketed by the plaintiffs was Rs 1,700, whereas, the cost of the drug in question sold by the Indian manufacturer averaged less than Rs 100 per capsule. Appropriate test had never been carried out abroad in relation to `Beta-crystalline' form of `Imatinib Mesylate', and, therefore, granting marketing approval without conducting tests was not valid. The single judge by an order dated April 28, 2004 made absolute the order of ex parte injunction granted on January 20, 2004. Pointing out that according to the single judge, the balance of convenience lay in favour of the respondents/plaintiffs, stressing more on the EMR granted in their favour, under Section 24B of the Patents Act, 1970, the Division Bench said it was difficult to interfere with the single judge's order. The Bench said that in response to the concern expressed by this court in the public interest, the respondents/plaintiffs, had come forward to relax the conditions imposed in the Gipap programme in public interest. The counsel for the respondents/plaintiffs gave an undertaking to the following effect, pending disposal of the suit: Supply of Beta-crystalline form of Imatinib Mesylate will be made freely to all the patients, who are suffering from chronic myeloid leukaemia and were earning less than Rs 3,36,000 per month; in the case of patients who were entitled for insurance for treatment of the disease, any amount which fell short of insurance policy shall be met by the respondents/plaintiffs. Similar concession would be extended to those who were covered under reimbursement scheme; the drug shall be supplied to the hospitals as per their requirement. An affidavit of undertaking to the above effect would be filed by the respondents/plaintiffs. Recording the undertaking of the counsel for the respondents/plaintiffs, the Bench confirmed the order of interim injunction dated April 28, 2004 of the single judge. The parties were at liberty to agitate their respective contentions before the single judge. If any difficulty arose in implementing the above arrangement, the parties were at liberty to move this court by appropriate applications. All the original side appeals were disposed of accordingly. Consequently, the connected petitions were closed. 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 sudhir at circuit.sarai.net Sat Jan 22 13:33:17 2005 From: sudhir at circuit.sarai.net (sudhir at circuit.sarai.net) Date: Sat, 22 Jan 2005 09:03:17 +0100 (CET) Subject: [Commons-Law] Call for Papers Message-ID: <3520.163.1.43.132.1106380997.squirrel@mail.sarai.net> Apologies for cross posting! WRITING COMPETITION AND CALL FOR PAPERS The Global Flow of Information: A Conference on Law, Culture and Political Economy April 1-3, 2005, Yale Law School The Yale Law School Information Society Project (ISP), The Yale Journal of Law & Technology (YJoLT) and the International Journal of Communications Law and Policy (IJCLP) are pleased to announce their second interdisciplinary writing competition and a call for papers, in conjunction with The Global Flow of Information Conference taking place on April 1-3, 2005 at Yale Law School. We invite students, scholars, policy makers, activists and practitioners to submit papers for the writing competition and/or for publication by YJoLT/IJCLP. Conference Description Patterns of information flow are one of the most important factors shaping globalization. Today individuals, groups, countries, and international organizations are trying to promote and control the flow of different kinds of information across national borders— information ranging from intellectual property and scientific research to political discourse, brand names and cultural symbols. And digitally networked environments subject information to ever new methods of distribution and manipulation. Fights over information flow are going to help define who holds power in the global information economy. The groundbreaking conference on Global Flows of Information, will explore these emerging patterns of information flow, and their political, economic, social, and cultural consequences. We will be looking at the following key questions in six different contexts: (1) governance; (2) economics; (3) culture; (4) politics; (5) science; (6) warfare: • Can the flow of information across borders be controlled? If so, how? • Whose interests are going to be affected by flows of information across borders? Who will be empowered and who will lose influence and authority? • What role can or should law play in securing freedoms, rights, and democratic accountability as individuals, groups, and nations struggle over control of information flows? • What lessons can we learn about how to regulate information flow from past experience with other kinds of flow across borders— for example, flows of goods, services, people, and capital? For a full conference description, list of speakers, schedule, and resources, please visit the Yale ISP web site (http://islandia.law.yale.edu/isp/). Writing Competition Submissions for the writing competition must be received by noon EST, February 1st, 2005. The author of the best paper, as well as two runners-up will be invited to present their work at a panel during the conference. The selection committee is composed of the editorial boards of YJoLT and IJCLP. The author of the winning paper will receive coverage of his/her travel to and accommodations at Yale University for the conference. Selected papers will be announced by March 1st, 2005. The authors of the award-winning papers will automatically be invited to publish their work in special Fall 2005 volumes of the Yale Journal of Law & Technology (http://yjolt.org) and the International Journal of Communications Law and Policy (http://www.ijclp.org) devoted to the conference topic. Journal Publication All submissions to the writing competition are automatically considered for journal publication as well. Authors unable to submit papers by the writing competition deadline may still submit articles for publication in the Fall 2005 IJCLP/YJoLT volume by noon EST, May 1st, 2005. Authors will be notified of acceptance by June 1st, 2005. The journals reserve the right to decide which journal will publish which work, based on the journals' respective audiences and editorial expertise. Submission Guidelines All submissions should be written in English in .doc or .pdf format. They should conform to academic citation standards, be no longer than 25,000 words, and include an abstract of up to 250 words. Submissions should be e-mailed simultaneously to Simone Bonetti (simo.bonetti at tiscalinet.it) and Boris Rotenberg (boris_rotenberg at yahoo.it), lead editors IJCLP; as well as to Lawrence Cogswell (lawrence.cogswell at yale.edu), Editor-in-Chief, YJoLT. Inquiries may be addressed to any of the above. From manu_shahalia at hotmail.com Sat Jan 22 20:24:04 2005 From: manu_shahalia at hotmail.com (Manu Luv Shahalia) Date: Sat, 22 Jan 2005 20:24:04 +0530 Subject: [Commons-Law] Collateral Damage References: <20050121140849.29120.fh036.wm@smtp.sc0.cp.net> Message-ID: Hi all, JUST A THOUGHT It is quiet interesting to see that Public interest by the Courts is being taken care of / rather emanating from the Judiciary not in PIL but from private party feuds between companies that have noting to do with public interest. Be it an Indian Drug manufacturer or an MNC, the Madras H Ct. decision might be people friendly for the time being but it serves the 'purpose' of the Indian drug manufacturers, who's 'purpose' is definitely not altruistic in any manner whatsoever. Manu Luv Shahalia Advocate 19, Raj Niwas Marg, Civil Lines, Delhi-110 054 Ph: 9818500977 ----- Original Message ----- From: To: Sent: Friday, January 21, 2005 7:38 PM Subject: [Commons-Law] Madras High Court ruling > > Came across this news report about an interesting > ruling of the Madras High Court, which ordered > temporary free supply of cancer drugs to low income > group people, > > cheers, > Jayna > > The link to the article is: > http://www.thehindubusinessline.com/2005/01/21/stories/2005012101590400.htm > > > > MNCs told to supply `patented' anti-cancer drug > > Our Legal Correspondent > > Chennai , Jan. 20 > > WHILE multinational anti-cancer drug manufacturers had > prevented Indian drug firms from distributing the > life-saving medicine on the ground that they held the > patent rights and had also been granted the exclusive > marketing rights (EMR) for these drugs under the > Patents Act, the Madras High Court has come to the > rescue of these unfortunate sufferers. > > As an interim arrangement to ensure that these patients > were able to obtain supply of the costly drugs, the > court has ordered the foreign drug producers to arrange > free supply of `Beta-crystalline' form of `Imatinib > Mesylate' to all patients suffering from chronic > myeloid leukaemia, and who were earning less than Rs > 3,36,000 per month. > > The order delivered by a Division Bench comprising Mr > Justice P.D. Dinakaran and Mr Justice S.R. Singaravelu > was a sequel to appeals filed by the Indian drug > companies against the foreign patent-holders in respect > of the life-saving medicine praying for vacating the > exparte order of injunction dated January 20, 2004 by a > single judge in favour of the latter, which was later > made absolute. > > In their suit, the respondents/plaintiffs (Novartis > A.G. Schwarzwaldalee 215, Switzerland, their Indian > associate, Novartis India Ltd, Mumbai & others) pleaded > for a direction against the appellants herein > (defendants in the suit), i.e., the Indian drug > companies, for a permanent injunction restraining the > Indian drug companies from selling the anti-cancer drug > under the mark/name `Imatib', `IMALEK', `Imanis', > `Zoleta' and `Temsan' so long as the EMR granted by the > Controller of Patents on November 10, 2003 was > subsisting. > > The respondents/plaintiffs, in all the suits, > contended, inter alia, that the EMR conferred an > exclusive right to sell the life-saving drug for a > period of 5 years, or till an order was passed in the > patent claim in India, whichever was earlier. > > They also contended that the element of `public > interest' had also been taken care of for supply of > free Glivec medicine by the programme called `Gipap', > and, therefore, if injunction were not granted, they > (respondents/plaintiffs) would suffer irreparable loss. > > Resisting the suits, the appellants/defendants > submitted that the first plaintiff (Novartis A.G) had > obtained patent in the US and Canada in respect of > `Pyramidine derivatives and processes for preparation > thereof'. > > No patent for `Imatinib Mesylate' was ever filed in > India, and, therefore, there was no question of the > plaintiffs being entitled to any protection on the > basis of any patent that might still subsist abroad for > `Imatinib' per se or for `Mesylate salt of Imatinib'. > > The EMR granted was vague and indefinite, the > appellants submitted. The cost of one capsule marketed > by the plaintiffs was Rs 1,700, whereas, the cost of > the drug in question sold by the Indian manufacturer > averaged less than Rs 100 per capsule. > > Appropriate test had never been carried out abroad in > relation to `Beta-crystalline' form of `Imatinib > Mesylate', and, therefore, granting marketing approval > without conducting tests was not valid. > > The single judge by an order dated April 28, 2004 made > absolute the order of ex parte injunction granted on > January 20, 2004. > > Pointing out that according to the single judge, the > balance of convenience lay in favour of the > respondents/plaintiffs, stressing more on the EMR > granted in their favour, under Section 24B of the > Patents Act, 1970, the Division Bench said it was > difficult to interfere with the single judge's order. > > The Bench said that in response to the concern > expressed by this court in the public interest, the > respondents/plaintiffs, had come forward to relax the > conditions imposed in the Gipap programme in public > interest. > > The counsel for the respondents/plaintiffs gave an > undertaking to the following effect, pending disposal > of the suit: Supply of Beta-crystalline form of > Imatinib Mesylate will be made freely to all the > patients, who are suffering from chronic myeloid > leukaemia and were earning less than Rs 3,36,000 per > month; in the case of patients who were entitled for > insurance for treatment of the disease, any amount > which fell short of insurance policy shall be met by > the respondents/plaintiffs. > > Similar concession would be extended to those who were > covered under reimbursement scheme; the drug shall be > supplied to the hospitals as per their requirement. > > An affidavit of undertaking to the above effect would > be filed by the respondents/plaintiffs. > > Recording the undertaking of the counsel for the > respondents/plaintiffs, the Bench confirmed the order > of interim injunction dated April 28, 2004 of the > single judge. > > The parties were at liberty to agitate their respective > contentions before the single judge. If any difficulty > arose in implementing the above arrangement, the > parties were at liberty to move this court by > appropriate applications. > > All the original side appeals were disposed of > accordingly. Consequently, the connected petitions were > closed. > > Ashira Law > Advocates and Legal Consultants > 50/6 Palace Road > Bangalore 56 00 52 > Ph: 0091-80-2261090 > _________________________________________________ > FindLaw - Free Case Law, Jobs, Library, Community > http://www.FindLaw.com > Get your FREE @JUSTICE.COM email! > http://mail.Justice.com > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > From sudhir75 at hotmail.com Sat Jan 22 20:58:40 2005 From: sudhir75 at hotmail.com (sudhir krishnaswamy) Date: Sat, 22 Jan 2005 15:28:40 +0000 Subject: [Commons-Law] Collateral Damage In-Reply-To: Message-ID: Dear Manu Not sure about the form of the litigation - private or public - but one can usefully characterise the outcome as pro-competitive and leading to lower prices. So a typically market based model would assume that individual actors pursuing self interest and competing ruthlessly would advance the public interest. It's not clear in the Indian context whether this model works.. Best Sudhir _________________________________________________________________ Redefine team work. Discover your true potential. http://www.microsoft.com/india/office/experience/ With the MS product suite. From lawrence at altlawforum.org Thu Jan 27 09:45:04 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Thu, 27 Jan 2005 09:45:04 +0530 Subject: [Commons-Law] Queering Bollywood Message-ID: Hi All An exciting multimedia database of materials on queer readings of Bollywood has been uploaded on http://media.opencultures.net/queer/ The database contains links to articles, film clips, movie reviews and a queer remix of Kal Ho Na Ho called "Kaun Mile Dekho Kisko" Do have a look, and feel free to mail your comments and suggestions to queerbollywood at yahoo.com Lawrence ======================= Queering Bollywood Queering Bollywood is an exhibition and demonstration of a collection of queer readings in Indian cinema. It is open and collaborative in nature. The idea for doing something like this was born at the Queer film festival organized by Pedestrian Pictures in 2003. The idea was to initiate the process of analysing and collecting information on queer representations in cinema, especially in the Indian context, by creating a database of resources ranging from articles, film clippings, magazine stories etc., aiming eventually to create: € a new dynamic of working together collaboratively towards a film or other such outputs around the idea of queer representations in cinema € a database on queer and subversive readings that can be used in group discussions, classroom, support groups even theme parties, nightclubs etc. € an exciting media product that is interactive and innovative, going beyond textual analysis of cinema, and making it a creative and academic exercise, thus reaching different kinds of publics From annymcbeal at gmail.com Fri Jan 28 11:58:58 2005 From: annymcbeal at gmail.com (anu) Date: Fri, 28 Jan 2005 11:58:58 +0530 Subject: [Commons-Law] US Pressures Guatemala to Revise Data Protection Law Message-ID: <8a1161ed05012722287ce3f61b@mail.gmail.com> The link for this item is: http://sippi.aaas.org/ipissues/updates/?res_id=506 US Pressures Guatemala to Revise Data Protection Law 18 Jan 2005 The US Embassy in Guatemala claims that the country's new data protection law "gives the U.S. Congress the impression that Guatemala is not serious about complying with commitments it made in the CAFTA." A recent fact sheet goes on to say, "This could result in CAFTA not being ratified by the U.S. Congress, where a close vote is expected." Guatemala's law narrows the circumstances in which it will maintain the confidentiality of drug data submitted for regulatory approval. The law provides 5 years of data exclusivity, as required by CAFTA, but only for new drugs that have never received marketing approval anywhere in the world. Since foreign drug companies typically seek approval in their home countries before Guatemala, virtually no drugs would be eligible for data protection. Clinical trial results are among the data submitted for regulatory approval. Generic drug manufacturers rely on these results to get approval for their cheaper versions of patented drugs. Source: US Dept. of State; Inside US Trade From annymcbeal at gmail.com Fri Jan 28 12:07:53 2005 From: annymcbeal at gmail.com (anu) Date: Fri, 28 Jan 2005 12:07:53 +0530 Subject: [Commons-Law] Open-Source Biology Evolves Message-ID: <8a1161ed050127223723b09752@mail.gmail.com> http://www.wired.com/news/medtech/0,1286,66289,00.html?tw=wn_story_page_prev2 Open-Source Biology Evolves To push research forward, scientists need to draw from the best data and innovations in their field. Much of the work, however, is patented, leaving many academic and nonprofit researchers hamstrung. But an Australian organization advocating an open-source approach to biology hopes to free up biological data without violating intellectual property rights. The battle lies between biotech companies like multinational Monsanto, who can grant or deny the legal use of biological information, and independent organizations like The Biological Innovation for Open Society, or BIOS, and Science Commons. The indies want to give scientists free access to the latest methods in biotechnology through the web. BIOS will soon launch an open-source platform that promises to free up rights to patented DNA sequences and the methods needed to manipulate biological material. Users must only follow BIOS' "rules of engagement," which are similar to those used by the open-source software community. "There are technologies you need to innovate and then there are the innovations themselves," said Richard Jefferson1, founder and director of BIOS in Canberra, Australia. "But those can only happen when there is fair access to the technologies." Just like open-source software, open-source biology users own the patents to their creations, but cannot hinder others from using the original shared information to develop similar products. Any improvements of the shared methods of BIOS, the Science Commons or other open-source communities must be made public, as well as any health hazards that are discovered. BIOS has called on Brian Behlendorf2, CTO of ColabNet, to create the web tools the open-source community platform will run on. Those should be up in the coming weeks. Nipping at its heels is the Science Commons. The outgrowth project of Creative Commons will have a hand in all areas of science, not just the life sciences like BIOS, and is getting ready to launch its open-source community in the next two to three weeks, said John Wilbanks, executive director of Science Commons. Wilbanks sees Science Commons and other open-source communities as a "neutral ground" for people to decide how much control over a patent they want to maintain or control. "Say you are a holder of patents and you want to make them available, you should be able to do that without having to call a lawyer," said Wilbanks. While free access to biological information will benefit those doing research, companies who have invested millions in patents, on the other hand, won't perform expensive groundbreaking research without a guarantee that their intellectual property rights would be upheld. "Patents attract investors, providing the resources necessary to bring the product to market," said Brigid Quinn, deputy director of public affairs with the U.S. patent office. "Patents are and have always been an important part of this country's economic fabric." On the contrary, Jefferson believes patent restrictions have compromised billions of people who should be benefiting from new diagnostic tests or improved genetically modified crops and medicines. For example, biologists in Kenya might be eager to create a genetically modified sweet potato that could allow farmers to use fewer chemical fertilizers. But if a company owns all or part of the gene sequence, DNA fragment or the mechanism in question, the scientists' hands are tied unless they can pay a licensing fee. The corporations that own such patents won't invest in research unless they know a market is waiting for the product. "Perhaps professors in Kenya can start a company, perhaps they can make $300,000 a year, but that's just not on the charts for Monsanto," said Roger Brent of Berkeley's Molecular Sciences Institute. Under an open-source contract between scientists, just like open-source software, developers would be free to use these methods to create new products. The products themselves would be proprietary, but the techniques and components used to make them would be open to all, meaning more bio-products, competition, smaller markets and faster improvements, Jefferson said. If Jefferson and his fellow rebel scientists succeed, biotech companies stand to lose their monopoly on creating integrated biological systems. But he believes human health, safety and standards of living will all suffer under the present patent structure. Some fear that making the latest methods of genetic modification public will provide terrorists with the know-how to concoct new bioweapons in the comfort of their own garage. "Biological knowledge can be used for good or ill and unfortunately it's easier to make a biological weapon than it is defenses," said David Seagrest, a fellow at the Center for Strategic and International Studies who focuses on biology and terrorism. With free instructions on how to cook up new, improved toxins, open-source biology could pose a threat to homeland security. Jefferson, however, distinguishes between having access to biotech components and the legal license to use them. The techniques for biohacking are already public -- they can be found in IP contracts -- it's just not legal to apply them. "The people who have malice are going to do it irrespective of whether or not it's legal," said Jefferson. Brent and Drew Endy, assistant professor of biology at MIT, who first coined the phrase "open source biology" at Berkeley's MSI, echoed this distinction. "Right now anybody who wants can re-synthesize the SARS virus," explained Brent. Brent, Endy and researcher Robert Carlson sounded a rallying cry for open-source biology at MSI in 1999. The idea was to give researchers and scientists free access to the information needed to invent new biotech products that could benefit their communities and keep the world safe. Five years later the dream of open-source software is becoming a reality. "This is just the kernel of open-source biology," Jefferson said. Jefferson sees open-source biology as part of science's evolution, the next logical step for science after the open access movement, in which organizations like the Public Library of Science made scientific journals freely available to anyone on the internet. Previously, thousands of dollars were charged annually for subscriptions by journals like Nature and Science. Now people will be able to perform the same experiments found in these free online journals and become part of the peer review and research process themselves. By broadening the base of people who could hack DNA, scientists like Brent, Endy and Jefferson believe the hacker culture values like elegant design, creativity and sharing beneficial works of engineering for all, will spread to biology. "I think those are virtues which the existing world of science and engineering could gain a lot from," Brent said. END OF ARTICLE From jeebesh at sarai.net Sat Jan 29 15:43:50 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Sat, 29 Jan 2005 15:43:50 +0530 Subject: [Commons-Law] TK and "Acummulation of Capital" Message-ID: <41FB61DE.7050308@sarai.net> Dear Friends, Roosemary Coombe in her paper during the contested commons/ tresspassing publics conference suggested that a reading of Rosa's Accumulation of Capital may give us an fresh entry point into the traditional knolwedge appropiation / protection debate and conflict. (most of the talks in mp3 formats will be on the sarai.net site soon.) I am enclosing the links to the five chapters that i think will be critically relevant to this debate. Believe me Rosa is a brilliant writer and it a pleasure to read her. Do give it a shot. (any problem in downloading, we can post the chapters on to the list). best j Accumulation of Capital by Rosa Luxemburg http://www.marxists.org/archive/luxemburg/1913/accumulation-capital/index.htm Section Three: the Historical Conditions of Accumulation Chapter 25: Contradictions Within the Diagram of Enlarged Reproduction Chapter 26: The Reproduction of Capital and Its Social Setting Chapter 27: The Struggle Against Natural Economy Chapter 28: The Introduction of Commodity Economy Chapter 29. the Struggle Against Peasant Economy From fred at bytesforall.org Thu Jan 13 00:34:48 2005 From: fred at bytesforall.org (Frederick Noronha (FN)) Date: Wed, 12 Jan 2005 19:04:48 -0000 Subject: [Commons-Law] We're Creative Commonists, Bill Message-ID: ---------- Forwarded message ---------- We're Creative Commonists, Bill By Katie Dean http://www.wired.com/news/culture/0,1284,66209,00.html When Bill Gates referred to copyright reformers as modern-day communists in an interview at the Consumer Electronics Show, it didn't take long for the web community to respond with a big "nyah-nyah-nyah." Bloggers and designers were quick to dream up "creative communist" symbols, a play on one of the best-known groups working for copyright reform, Creative Commons. The images were instantly passed around and added to websites, T-shirts and buttons. The kerfuffle started when Gates was asked in a News.com interview if intellectual property laws should be reformed. He replied: "No, I'd say that of the world's economies, there's more that believe in intellectual property today than ever. There are fewer communists in the world today than there were. There are some new modern-day sort of communists who want to get rid of the incentive for musicians and moviemakers and software makers under various guises. They don't think that those incentives should exist," he told News.com. The comments show just how out-of-touch Gates is with a large and growing community of people who have embraced the ideas of open source and building on one another's creative works, proponents of copyright reform say. Creative Commons was formed to provide a more balanced alternative to those who want to protect their works, but share them under certain conditions. The group devised a series of flexible copyright licenses available for anyone, for free. When people snap photos, write music or create animations, for instance, they can choose a license that permits others to use or sample the content as long as they credit the author and use the material for noncommercial purposes. Glenn Otis Brown, executive director of Creative Commons, wondered whom Gates was referring to when he made the remarks. Certainly not Creative Commons, which is a "voluntary, market-based approach to copyright," Brown wrote in an e-mail. "I get sad when people cheapen words like 'communist' or 'fascist' by throwing them around recklessly, especially given what those words meant in the not-so-distant past," Brown wrote. "My father was a CIA Cold Warrior for 35 years of his life; he wasn't fighting against GPL'd software. Stalinist purges, the Berlin Wall, tanks in Budapest - -- that's communism. "And let's not forget just how many creative people's lives were ruined by irresponsible name-calling not too long ago. Remember the Hollywood blacklists?" he wrote. Lawrence Lessig, Stanford University law professor and chairman of the board of Creative Commons, mocked Gates' comments at the organization's second anniversary party Thursday night in San Francisco. He said Gates was mistaken: Copyright reform advocates are "commonists," not "communists." Ken Mickles, owner of Giant Robot Printing, decided to print T-shirts with the red Creative Commies logo. After Boing Boing posted the link, Mickles received about 250 orders in less than a day, he said. The T-shirts sell for $5 or $6 depending on size. Graphic designer Ryan Schroeder also arranged to print similar shirts through CafePress.com. "I can't say I was terribly surprised by (Gates') comments. That's the kind of thing you would expect," Mickles said. "I don't really take offense to being called a communist." From announcer at crit.org.in Sat Jan 15 01:42:02 2005 From: announcer at crit.org.in (Glow Positioning System) Date: Sat, 15 Jan 2005 01:42:02 +0530 Subject: [Commons-Law] GPS at the GPO: Public Artwork in Mumbai Message-ID: <8DE5B8A5-6668-11D9-884C-000A95A05D12@crit.org.in> You are invited to GLOW POSITIONING SYSTEM An interactive public artwork by Ashok Sukumaran at the GPO/Kabutarkhana near CST (Chhatrapati Shivaji Terminus) in South Mumbai SATURDAY 15 January to SUNDAY 16 January 2005 5.30 p.m. to 10.30 p.m. Turn a crank. Light up your city. Participate in your own environment, in a surprising and poetic way. GPS at the GPO is an interactive installation which will transform an entire chowk into a visual instrument. Lights can be "played" across the architecture, on the trees and across the roads, by literally anyone on the street. An urban panorama is unfolded -- by you. The individual enters into a simple yet powerful interaction with their city. This is a visual relationship, but also a relationship about power, about kinesthesia, and touch, and play. Art, architecture and even urban design are increasingly about relationships -- not forms. Technology is enabling these relationships, through mobility, speed and wirelessness. But there is also the feeling of a sensory void, of running too fast. This work explores an entirely different technological possibility -- by asking us to slow down, and enjoy the view. http://users.dma.ucla.edu/~suku/ringoflights.html ASHOK SUKUMARAN is an architect and media artist who has recently moved from Los Angeles to Mumbai. He is currently co-producing one of the first permanent public interactive artworks in the U.S.A., for the city of Pasadena, California. Ashok's work occupies a zone between the disciplines of interactive art, architecture and cinema, and has received several awards internationally. In 2004, he has had solo shows of his work in Mumbai and New York. _____ CRIT (Collective Research Initiatives Trust) Announcements List http://lists.mahiti.org/mailman/listinfo/announcer http://www.crit.org.in From tinakuriakose at rediffmail.com Fri Jan 21 18:59:12 2005 From: tinakuriakose at rediffmail.com (tina kuriakose) Date: 21 Jan 2005 13:29:12 -0000 Subject: [Commons-Law] Report -John Frow- IPR and Public Domain Message-ID: <20050121132912.18005.qmail@webmail6.rediffmail.com>    Dear All, Please kindly note the accompanying attachment. It is a Report on the Paper Presented by Prof. John Frow at the Conference on Inequalities, Conflicts and Intellectual Property (6-8 January 2005). The Report also includes certain questions to which readers are invited to make their comments. Regards, Tina Kuriakose -------------- next part -------------- An HTML attachment was scrubbed... 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Name: IPR_report.doc Type: application/msword Size: 24576 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20050121/66d0dea7/attachment.doc From thehindu at web1.hinduonnet.com Sat Jan 22 13:00:21 2005 From: thehindu at web1.hinduonnet.com (thehindu at web1.hinduonnet.com) Date: Sat, 22 Jan 2005 13:00:21 +0530 Subject: [Commons-Law] Article from The Hindu: Sent to you by Promod Nair Message-ID: <200501220730.j0M7ULYf002125@web1.hinduonnet.com> ============================================================= This article has been sent to you by Promod Nair ( promod at duaassociates.com ) ============================================================= Source: AGRICULTURE Celebrating a cereal ASHA KRISHNAKUMAR Rice, the principal source of sustenance of much of Asia, is under threat from multinational companies that are patenting genetically engineered varieties. THE development of a high-yielding dwarf rice variety, IR 8, by the Manila-based International Rice Research Institute (IRRI) on November 28, 1966, marked the beginning of Asia's freedom from hunger. The promise shown by the "miracle rice" made the Food and Agriculture Organisation (FAO) of the United Nations designate 1966 as the International Rice Year. Thirty-eight years later, as the U.N. dedicated 2004 to the world's most important staple food once again, celebrating it as the International Year of Rice, the starchy cereal seems to have undergone a metamorphosis. PETER PARKS/AFP Selling rice in a Beijing market. As much as 92 per cent of the world's rice production is consumed in Asia. The story of rice has always been interesting. According to Devinder Sharma, chairperson of the Delhi-based Forum for Biotechnology and Food Security, the cereal's journey began with the emergence of wild varieties some 130 million years ago in the Himalayas. It passed to southern China, hopped to Japan, travelled to Africa, crossed into the Mediterranean, was traded in West Asia and shipped to Mexico and the United States, and finally ended up on the banks of the Rhine in Basel, Switzerland, under the monopoly control of the multinational agribusiness giant Syngenta. Even as the world celebrates rice, which has been cultivated for centuries in 113 countries and on which over 3,000 million people rely for livelihood and sustenance, Syngenta has claimed ownership of the grain. The race is on for its proprietary control. Monsanto, the multinational plant biotechnology firm, made international headlines in April 2000 by offering to share its working draft of the genome map with international researchers sequencing the rice genome; now Syngenta is trying to get patents on genes with visible commercial output. According to Devinder Sharma, the tussle over the monopoly control of rice extends to the cereal's 12 chromosomes, which contain 430 million base pairs of deoxyribonucleic acid (DNA), and are expected to have about 50,000 genes. Syngenta, in collaboration with Myriad Genetics Inc of the U.S., has beaten Monsanto in the game by sequencing more than 99.5 per cent of the rice genome. Syngenta has made it clear that it will restrict access to the genomic map and expects proprietary control over any research carried out with the information. CALLED "Prana", or the breath of life, rice is much more than just a source of calories in India, Japan, China and much of the rest of Asia. It is the basis of the continent's biological, geographical, social, religious and cultural diversity. It is in Asia that more than 97 per cent of the world's rice is grown and where 92 per cent of it is consumed. Rice is the principal food of three of the world's four most populous nations, China, India and Indonesia. It sustains more than 2.5 billion people in these three countries. The 200,000 plant accessions of rice known to be cultivated some 200 years ago and the handful of dwarf and high-yielding varieties and their numerous national variants have led the march against hunger in the past five decades. Little wonder that rice has almost divinity status in many countries. For instance, in India, farmers offer paddy seeds to the sun god on the first day of a new agricultural cycle. Indian farmers have always worshipped rice as the goddess of wealth and protected it. For instance, after the great Bengal famine of 1942, which killed two million people, peasants refused to allow the British to take away their rice. "We will give our lives, but not our rice," was the call of the peasant uprising of the Tebhaga movement. Yet, the cereal remains besieged. According to Vandana Shiva, Director of the Delhi-based non-governmental organisation Research Foundation for Science, Technology and Ecology, rice is under threat with the corporatisation of its varieties. Rice has evolved as a food source in Asia in varied forms, she says. Globalisation and corporatisation of agriculture are threatening that diversity, which extends to a mind-boggling 200,000 varieties. As the Green Revolution, which made India self-sufficient in food, fades away, the world's technocrats and business houses are forcing the country into another set of problems by genetically modifying rice. An argument against the use of genetically engineered (G.E.) varieties is that the multinational companies are not really creating them but merely taking genes from the varieties evolved by farmers over time and repackaging them. "It is a case of intellectual piracy; genetically engineering rice with genes taken from farmers' varieties and then going on to claim a patent for it under the Intellectual Property Rights regime is a form of intellectual piracy and biopiracy," says Vandana Shiva. As one of the most widely planted crops - on 150 million hectares - rice has a profound impact on the environment and natural resources. According to Sze Pang Cheung, Campaign Manager of Greenpeace China, G.E. rice can contaminate local varieties. Research by scientists in China has shown that the pollen of G.E. rice can spread up to 110 metres. G.E. rice can multiply and spread, once released into the environment. "If rice is life, G.E. rice is a gamble with our life," he says ominously. According to Suman Sahai, director of the Delhi-based Gene Campaign, contamination in the natural gene pools of rice is a serious issue for such centres of diversity as India. The U.N. designation of 2004 as the International Year of Rice is meant to focus on the threats to rice production across the world and to develop strategies to ensure that sufficient quantities of the cereal are produced to feed the growing world population. "Since so little is known about the long-term consequences of foreign genes moving into crop species - and almost nothing is known in the case of rice - it would be foolhardy and dangerous to take a risk with a crop that feeds over half the world," says Suman Sahai. However, what is most worrisome is the fear of the unknown and the fact that the multi-billion dollar G.E. crop industry is controlled by a few multinational corporations. Recently, "vitamin A rice", or "Golden Rice", was touted as a cure for blindness. More than $100 million was spent over 10 years to produce this transgenic rice at the Institute of Plant Sciences in Zurich, Switzerland. The Zurich team introduced three genes taken from daffodils and bacteria into a rice strain to raise its content of beta-carotene, which gets converted into Vitamin A in the human body. But experts argue that this will have no effect as it will meet less than 1 per cent of the required daily intake of Vitamin A. Ninety-nine per cent of the Vitamin A will still have to come from alternatives such as vegetables and fruits. According to Vandana Shiva, one of the key weapons of colonisation of rice by powerful interests is the patent system. "The most stunning example of cultural imperialism was when Rice-tee, a U.S.-based corporation, claimed the famous Indian basmati to be its `invention' - Patent No. 566484." Strong campaigns across India may have forced this corporation into retreat, but, according to Vandana Shiva, this will definitely not be the last such attempt. According to Devinder Sharma, there are conflicting reports of the number of patents on rice genes. Some researchers say that more than 900 genes have been patented. The Barcelona-based Genetic Resources Action International (GRAIN) had compiled a list of 609 patents on rice genes drawn until September 2000; 56 per cent of these were owned by private companies and research institutes of Western countries. At the top of the list was the American chemical giant DuPont with 95 patents, followed by Mitsui, Japan, with 45. Says Vandana Shiva: "Such acts are the appropriation of nature's regeneration processes and the innovation by indigenous rice farmers of Asia over centuries. It is blatant biopiracy." Concurs Devinder Sharma: "Biopiracy continues in connivance with top scientists, international organisations, and policy makers." But the Consultative Group on International Agricultural Research (CGIAR), which governs the 16 international agricultural research centres for public good, has gone a step ahead by taking Syngenta on its board, giving the company access to the world's biggest rice germplasm collection. THE quest for control over rice does not end with the patenting of its genes. In 2002, amid huge public protests, Syngenta India had to pull out from the controversial research collaboration with the Indira Gandhi Agricultural University (IGAU) at Raipur. The collaboration would have given the company commercial rights over 19,000 strains of local rice cultivars, painstakingly gathered by the agricultural scientist R.H. Richharia in the 1970s. Warns Patrick Mulvany, a distinguished researcher with the United Kingdom-based Intermediate Technology Development Group: "Not just national collections, but also CGIAR genebanks (which contain over 600,000 plant accessions) will come under increasing pressure from multinationals in the next year or two." However, no corporation can reproduce the amazing diversity of rice that nature and farmers have evolved over centuries - rice that grows up to 18 feet, survives floods, is salt- and drought-tolerant, or that is aromatic and therapeutic. This diversity, and the knowledge and culture it embodies is the real basis for future food security. Vandana Shiva says: "We must fight to keep rice free in all its amazing diversity. Because on the freedom of rice depends the freedom of millions of Third World farmers." Navdanya, a Delhi-based NGO, has, together with farmers of nine States, developed a Register documenting in detail over 2,000 rice varieties. According to the Register, GE appears a laggard technology compared to the indigenous rice varieties that can withstand the severest climatic conditions. For example, West Bengal grows 78 drought-resistant rice varieties; Uttaranchal grows 54; and Kerala 40. Orissa, notorious for starvation deaths, is also home to a few drought-resistant varieties of rice. According to the Register, farmers in India have also developed rice that can survive submergence for up to 15 days, when two or three days of submergence can kill ordinary rice. "As for resistance to salinity, what tougher test can there be for rice than to be grown in the mangroves of West Bengal?" asks Vandana Shiva. Three varieties of rice are grown in the tidal waters of the mangrove area. And the soil is so fertile that the crop needs no attention from the farmer who, after transplanting the paddy, all but abandons it until harvest. Orissa, Kerala and Karnataka too grow a wide variety of salinity-resistant rice cultivars. These varieties, unlike the G.E. ones, are eco-friendly too. "After all, farmers have tried and tested them over hundreds of years, while the effects of genetically engineered rice varieties on the ecology are not yet understood," says Vandana Shiva. S.U. Zaman, Principal Scientist, Indian Agricultural Research Institute, plays down the fear of transgenic rice varieties, saying that any new variety is put through a set of well-recognised bio-safety procedures. Yet, he cautions that thought needs to be given to how to conserve indigenous varieties. A comprehensive system needs to be formed wherein indigenous varieties exist alongside new ones. "Accent should be on providing new varieties to farmers who do not have access to good, indigenous cultivars," says the rice expert. In this International Year of Rice, the U.N. has called upon different stakeholders to promote the sustainable future of rice. Says Sze Pang Cheung: "If we are to promote the sustainable future of rice farming, G.E. rice is simply not the answer." Despite what the biotech cheerleaders say, alleviating poverty and feeding the world requires more than a technological solution. G.E. rice does not solve these problems. "One is not against the G.E. technology. It is important to be clear about how and for which crop it is used. A lot of research needs to be done and safety measures put in place before opening up Indian farms to G.E. crops," says Suman Sahai. An open, transparent public debate could be a good starting point. The International Year of Rice has wound to a close. Now it is important to understand that rather than leaving the lives of millions of farmers and consumers in Asia at the mercy of private-sector-controlled technology, it is crucial to look at socio-economic issues such as access, distribution, sustainability, food security and seed and land ownership. Only this can ensure a hunger-free world, particularly for Asia, for whose people rice is indeed life. Copyright: 1995 - 2005 The Hindu Republication or redissemination of the contents of this screen are expressly prohibited without the consent of The Hindu From tahir.amin at btopenworld.com Sat Jan 22 15:15:21 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Sat, 22 Jan 2005 09:45:21 +0000 (GMT) Subject: [Commons-Law] Hollywood has downloaders in its sights Message-ID: <20050122094521.39647.qmail@web86105.mail.ukl.yahoo.com> Hollywood has downloaders in its sights Cheap, easy file-sharing system upsets film industry Bobbie Johnson Saturday January 22, 2005 The Guardian As anyone who has witnessed Hollywood award ceremonies knows, the film industry loves nothing better than giving itself a slap on the back. But it does not enjoy a slap in the face - which is what it claims it is being dealt by BitTorrent, a revolutionary file sharing program that allows people to download movies more easily than ever before. BitTorrent (www.bittorrent.com) is responsible for a third of all the traffic across the world wide web. It is the biggest fish in file sharing's pond, with one survey by British firm CacheLogic estimating that it is responsible for 35% of all internet traffic. But the film and music industries claim it is a haven for pirates and illegal distributors. The Motion Picture Association of America - which represents the major Hollywood studios - has issued cease and desist orders against BitTorrent websites in a move which echoes the Recording Industry Association of America's attacks on the pioneering file sharing service Napster. A man was arrested in Hong Kong last week on suspicion of using the program to distribute pirated material. If convicted, he could face up to four years in prison. "Pirated copies of movies and software typically appear online within hours of release," says Mark Ishikawa of BayTSP, a provider of systems that monitor intellectual property on the internet. Surveys by BayTSP have shown that thousands of copies of movies such as Collateral, starring Tom Cruise, are available for download on BitTorrent. The program has turned the previous method of downloading on its head. In ordinary file sharing networks, material is downloaded from a single source. This makes it slower - and therefore more expensive - to get files that are in high demand. BitTorrent shares the burden across many computers, so instead of downloading one large item of data, it acquires lots of small pieces from around the internet and then puts them back together to make the complete file. It is the internet equivalent of piecing together a puzzle, and means that the more popular the file, the more sources there are to draw from. This makes downloads faster and cheaper. Critics say that there is little hard evidence to back up the fear being generated in Hollywood. For many, the music industry - which fought tooth and nail against file sharing - has yet to prove that illegal downloading harms sales. In fact, some studies have suggested that downloaders are more likely to buy music than ordinary consumers. Many claim that piracy is most common where there is no legal alternative. Well-publicised legal music download services such as Apple's iTunes have been a success, with download tracks overtaking singles sales. Some believe that all the film industry needs is a similar service to stem the threat of piracy. Yet the industry does not provide any real options for those wanting to view films legally on their computers. This is acknowledged by the MPAA, which espouses the benefits of the internet. "The question is how you make legitimate services available without harming your own revenue," says Arash Amel, an analyst at Screen Digest. "It's not cheap to make a film, and if there's a shortage of money then less films get made. It's theartistic and independent films that get hit first even though they're not the ones that usually get pirated." Bram Cohen, the 29-year-old American inventor of BitTorrent, says that copyright holders have failed to realise the benefits of the internet. "The MPAA and RIAA would have you believe that they both create and own the sum total of western culture," he says. He admits that illegal materials - or "warez" as they are known - are being distributed by his system. "Obviously there's a fair amount of warezing going on using BitTorrent." But BitTorrent's weaknesses may save it from collapse. The MPAA is focusing on closing down website "hubs" which point to illegal content, rather than attacking BitTorrent itself, which is also used to legitimately download software and music. This marks a departure from tactics used by the music industry, which focused on the program makers. Mr Cohen says he has hardly ever been threatened with legal action, claiming that he got "one cease and desist from a game company once ... but that's it." When the largest BitTorrent hub, SuprNova.org, was blacked out in December under threat from the MPAA, many predicted that it would signal the end of Torrenting. However, the program remains as popular as ever. "Although a number of very large BitTorrent-based websites have been taken down recently," says Mr Cohen, "downloads of BitTorrent have only gone down slightly." For creative industries, the struggle against technology is an impossible one. BitTorrent traffic remains almost invisible, with packages of information being constantly delivered to destinations across the web. But there is an increasing recognition in the film industry that it must embrace change rather than resist it. "We need to learn the lessons of the music industry," said a spokeswoman for the UK Film Council. "The film industry needs to look at ways of providing films to download over the internet - but there's still some work to be done on that." --------------------------------- 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/20050122/5c565909/attachment.html From m.hardie at student.unsw.edu.au Sat Jan 22 21:03:52 2005 From: m.hardie at student.unsw.edu.au (Martin Hardie) Date: Sat, 22 Jan 2005 16:33:52 +0100 Subject: [Commons-Law] Collateral Damage In-Reply-To: References: Message-ID: <200501221633.52488.m.hardie@student.unsw.edu.au> On Saturday 22 January 2005 16:28, sudhir krishnaswamy wrote: > Redefine team work. Discover your true potential. > http://www.microsoft.com/india/office/experience/ With the MS product > suite. hmmmm!! rofl -- :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: "the riddle which man must solve, he can only solve in being, in being what he is and not something else...." http://auskadi.tk :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: From tahir.amin at btopenworld.com Mon Jan 24 21:21:16 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Mon, 24 Jan 2005 15:51:16 +0000 (GMT) Subject: [Commons-Law] Piracy, Contraband Account for Over Half of Sales in Many Industries Message-ID: <20050124155116.43240.qmail@web86108.mail.ukl.yahoo.com> Piracy, Contraband Account for Over Half of Sales in Many Industries Diego Cevallos MEXICO CITY, Jan 3 (IPS) - In Mexico, 58 percent of all clothing sold is contraband or pirated, as is 60 percent of sound recordings, 55 percent of software, 90 percent of cigars and 66 percent of sports shoes. Earnings from smuggled and counterfeit goods amount to between six and 10 billion dollars a year in Mexico, where these illegal products are sold openly, even right below the noses of the police and other authorities. "A lot of stuff is sold here, because people find affordable products," Fabián, a street vendor hawking pirated CDs, told IPS. Fabián's stall is located less than 500 metres from the attorney-general's office, which is in charge of cracking down on the smuggling, manufacturing and sale of illegal goods. Mexico ranks third in the world, after Russia and China, in sales of pirate CDs, according to the International Federation of the Phonographic Industry (IFPI). Annual sales of bootleg CDs total around 400 million dollars in Mexico. "They (the police) rarely bother me, but when they do come around, I just have to stay away for a while, until things calm down," said Fabián, while the stereo in his stand blasts a popular song. There are around 55,000 stalls like Fabián's in Mexico, where 105 million pirated sound recordings are sold annually, 40 million more than the total number of legal copies. A number of these stands are found in Tepito, which is located near the historic centre of the Mexican capital and is one of the world's biggest markets for counterfeit products. A wide range of pirated and smuggled goods, including drugs and high-powered weapons, can be found in this enormous street market, which never closes. Such goods are also sold all over Mexico, where more than 10 million people, out of a total population of 102 million, work in the informal sector, and eight million sell contraband or counterfeit products. Representatives of the attorney-general's office say efforts to fight piracy and smuggling are ongoing and constant, but that the phenomenon is a broad one and extremely difficult to eradicate. >From January to October 2004, the police seized and destroyed more than 76 million counterfeit products. But that is just a drop of water in the ocean. Peddlers of pirated goods, most of whom hawk their wares at stands in markets like Tepito, are able to offer films, music, video games or software long before legal copies appear on the market in Mexico. "The crude reality is that Mexico is flooded with contraband and pirated goods, which leads to the loss of hundreds of jobs and costs the state a great deal of money," Tony Kuri, president of the National Chamber of the Apparel Industry, commented to IPS. According to Kuri, the garment industry lost some 10 billion dollars last year to competition from illegal products as well as theft of merchandise. The special unit on federal crimes, set up by the attorney-general's office, reports that the sectors hit hardest by counterfeiting and smuggling are the music industry, video games, books, clothing, footwear, toys, watches and clocks, telecommunications and software. In Mexico, 22 million legal copies of films are distributed annually every year, compared to nearly 30 million pirated copies, according to official statistics. Business associations in the audiovisual industry estimate their annual losses due to counterfeiting and bootleg copies at one billion dollars. With respect to the textile industry, 58 percent of garments sold in Mexico were either smuggled in or produced in the country as counterfeit brand-name products. In terms of software, it is estimated that of every 100 products sold, 55 are illicit. The Mexican Association of Cigar Manufacturers estimates that 90 percent of the cigars sold in Mexico are the product of contraband or piracy. And Roberto Castañeda, the head of the Alliance Against Piracy, a non-governmental organisation, says that two out of three pairs of sports shoes sold in Mexico are fake brand-name products or came into the country as contraband. The garment industry's Kuri blames sales of counterfeit or smuggled goods on lax law enforcement, a lack of education and awareness on the part of consumers, and the economic difficulties faced by many Mexicans, half of whom live in poverty. The price difference between legal products and bootleg copies can amount to more than 300 percent. Laws were passed in October 1999 to make trade in counterfeit and contraband products a serious crime in Mexico, punishable by prison sentences instead of fines. Also announced at that time was the start of infiltration by the police in criminal organisations involved in the illegal trade, while an aggressive media campaign was launched to fight piracy. But the problem has not let up, and there seems to be no end in sight, complained Kuri. The Mexican Association of Studies for the Defence of the Consumer (AMEDC) says pirated products are harmful to both consumers and producers, and that the only way to fight the phenomenon is through stepped-up police enforcement and by providing consumers with more information, and affordable quality products. (END/2005) --------------------------------- 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/20050124/3a91050e/attachment.html From tahir.amin at btopenworld.com Mon Jan 24 21:32:02 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Mon, 24 Jan 2005 16:02:02 +0000 (GMT) Subject: [Commons-Law] Chinese medicine set for protection Message-ID: <20050124160202.51027.qmail@web86107.mail.ukl.yahoo.com> Chinese medicine set for protectionJia Hepeng 14 January 2005 Source: SciDev.Net [BEIJING] China has launched a scheme to protect indigenous knowledge related to traditional medicine from being exploited commercially without appropriate sharing of benefits. The programme, which began this month, could lead China to create online libraries of databases relating to traditional Chinese medicine (TCM) and intellectual property. The aim is to prevent traditional medicine from being used commercially by foreign companies without payment, says Liu Changhua, chair of the programme and a professor at the Chinese Academy of Traditional Chinese Medicine. Lui told SciDev.Net that ancient books refer to more than 400,000 herbal remedies using 20,000 plant species. International pharmaceutical companies have developed products based on many of these traditional remedies. According to Liu, the World Health Organization estimates that traditional therapies produce US$60 billion in profit annually, but indigenous communities, including those in China, have received few benefits. Rights to use indigenous knowledge need to be protected, says Liu, but cannot use China's current intellectual property rights framework. One problem, he says, is that intellectual property rights are legally the right of private individuals or organisations whereas indigenous knowledge mostly belongs to local communities, often represented by national governments. Given the breadth of indigenous knowledge underpinning traditional medicine, says Lui, two issues to be solved are to determine what should be protected, and what can feasibly be protected. To address the situation, the protection programme is creating a classification of traditional China medicine knowledge and identifying fields with commercial potential. The programme will also study ownership of indigenous knowledge and classify fields of medicine as being patentable or not. It will publish its findings and recommendations in June. Lui says that if China's State Administration of Traditional Chinese Medicine (SATCM), whose director is also China's vice-minister of health, accepts the report's recommendations, the government could invest 100 million yuan (US$1.2 million) to develop a digital library of traditional medical knowledge and a large database of patents. "India has set a good example by establishing a digital library of its indigenous medical knowledge, and we can follow its example," he adds. Shen Zhixiang, a senior official at SATCM told a conference on 7 January that the administration would apply to add to add traditional Chinese medicine to UNESCO's list of 'non-material heritage'. China has signed agreements with 17 countries, including Ireland, Italy and Norway, to jointly develop products based on traditional Chinese remedies, said Shen. Emphasising the growing international profile of Chinese remedies, he added that there are now more than 50,000 Chinese medicine clinics in 130 countries. According to SATCM, China spent US$966 million researching, preserving and improving education about TCM between 2000 and 2004. --------------------------------- 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/20050124/0715a79a/attachment.html From thehindu at web1.hinduonnet.com Tue Jan 25 02:53:05 2005 From: thehindu at web1.hinduonnet.com (thehindu at web1.hinduonnet.com) Date: Tue, 25 Jan 2005 02:53:05 +0530 Subject: [Commons-Law] Article from The Hindu: Sent to you by anuj Message-ID: <200501242123.j0OLN5MK023343@web1.hinduonnet.com> ============================================================= This article has been sent to you by anuj ( anujbhuwania at gmail.com ) ============================================================= Source: The Hindu (http://www.hinduonnet.com/2005/01/25/stories/2005012502622200.htm) National    Horrors on VCD PORT BLAIR, JAN. 24. Pushing aside pirated Bollywood movies, new releases are ruling the black market video charts: compilations of grisly pictures and videos of the tsunami horror. ``There is great demand for them,'' said Mukesh Vyas, a compact disc dealer here. ``We don't have the stock, they are so hard to get.'' Sometimes the CDs are simply news footage recorded from television broadcasts. But more often, it is highly graphic footage, often shot by amateurs, that would not make it to broadcast TV. Insensitivity The videos have infuriated survivors and, in a few instances, put the police into action. ``This is wrong,'' said Mildred Kujur, a tsunami survivor from Campbell Bay island, at the southern end of the Andaman archipelago. ``They are filling their pockets at our expense. This sort of insensitivity really hurts us.'' The police in the Thai resort town of Phuket arrested a man for selling video CDs of the disaster, where sidewalk vendors have been peddling video CDs of the tsunami for 100 baht (about Rs. 107). But for the salesman, the videos simply reflect what the public wants to see, a sort of high-tech rubbernecking of one of the most deadly natural disasters of the past century. The sales pitch ``It shows everything — how people died, how they were buried, people who were saved and destroyed property. Good quality. Good sound,'' said Palaniappan, 14, selling CDs outside Port Blair's Roman Catholic church. His prices match the demand. While most of his CDs, like a pirated version of the newly released Hindi movie Swades, sell for about Rs. 20, the 80-minute locally made compilation titled simply ``Tsunami-Affected Area'' goes for more than triple that. ``This is Rs. 70 because this is about the tsunami,'' the boy said. The video, divided into two parts, includes a droning Hindi-language voiceover. The first part is a slideshow of still photographs, such as giant waves engulfing people and dead bodies in various unidentified Asian locations. The video section has what is billed as the CD's exclusive highlight — amateur footage of the flooding minutes after the tsunami-hit Port Blair. Tough to watch It can be difficult to watch. At one point, a man — apparently drowning — can be seen trying to cling to a bridge as waves wash over him. In another section, the bloated body of a child is manoeuvred into a grave by a group of policemen. Palaniappan, who lost no family members in the disaster, admitted he cannot stand to look at the most graphic sections of the video he was selling. ``I tested the CD for its quality at home. But I couldn't see the bodies and the scenes of cremations,'' he said. ``I walked out.'' AP Copyright: 1995 - 2005 The Hindu Republication or redissemination of the contents of this screen are expressly prohibited without the consent of The Hindu From tahir.amin at btopenworld.com Wed Jan 26 16:09:24 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Wed, 26 Jan 2005 10:39:24 +0000 (GMT) Subject: [Commons-Law] Academics fight to break 'stranglehold' on journals - Guardian Message-ID: <20050126103924.86316.qmail@web86108.mail.ukl.yahoo.com> Academics fight to break 'stranglehold' on journals Donald MacLeod Wednesday January 26, 2005 Hopes of opening up research findings to a wider readership and breaking the stranglehold of publishers over academic journals will be aired at a conference at Southampton University today. Southampton, the first UK university to make all of its academic and scientific output freely available, announced that its repository will in future be an integral part of its research infrastructure. Advocates of open access won the backing of MPs last year but have not yet succeeded in convincing ministers. The escalating cost of journals - and the rising number published - is a major headache for university libraries, but supporters of open access argue there is a moral case for making findings freely available. They hope it will increase the influence of British science internationally and help researchers in developing countries where expensive journals are hard to access. The Commons science and technology committee backed experiments with open access publishing where the author pays and it is free to the reader but this was rejected by the government after determined lobbying by publishers. The MPs also suggested trials of open access repositories where the researcher publishes in a paid-for journal but archives his paper at his or her university. This was ignored by the government. Faced with the reluctance of governments in the UK and abroad to push for open access by attaching conditions to research grants, the open access movement is trying to get self-archiving off the ground on a large scale. Following a technical seminar yesterday discussing the lessons learned at Southampton, senior librarians and university managers will debate future developments today. Robert Campbell, president of Blackwell Publishing, is due to consider how author self-archiving of journal articles might affect learned society journals, and reflect on the balance between providing open access to articles and protecting the journals which publish them. Professor Stevan Harnad, one of the founders of the open access (OA) movement, argues there are two roads to open access - the 'golden road' of publishing in an OA journal (author-institution pays publication costs instead of user-institution) and the 'green road' of publishing in a non-OA journal but also self-archiving the article in an OA archive. He believes self-archiving by researchers should be mandated by universities and funders such as the research councils. (The influential Wellcome Trust, which awards grants of £1.2bn a year, has come out strongly in favour of open access publishing.) Academic journals are anxious about these developments. One of the most prestigious, Nature, is encouraging self-archiving - but only after six months, meaning that fellow researchers would have no realistic choice but to subscribe. The joint information systems committee (Jisc), which coordinates information technology at UK universities, is encouraging the creation of open access journals and has funded free access for universities to journals published by BioMed Central. Jisc said that since it first signed up for BioMed Central membership in July 2003, there had been a huge increase in support and usage from researchers in the UK. Submissions to BioMed Central's journals by UK academics have increased by 180%, and publications have increased by 210%. Downloads of BioMed Central journal articles by the UK community have more than doubled since July 2003. "These results demonstrate that the Jisc membership has had a huge impact on the awareness of open access publishing in just one year," said a spokesman. This month Jisc awarded a total of £150,000 to some of the key scholarly publications in their fields: the New Journal of Physics (published by the Institute of Physics Publishing); Nucleic Acids Research (Oxford University Press); Journal of Medical Genetics (BMJ publishing group Ltd); the journals of the International Union of Crystallography (IUCr); and The Journal of Experimental Botany (The Society for Experimental Biology). Jisc funding will ensure the waiving of all or part of the submission/publication fees for all UK HE authors. In the US the Public Library of Science (PLoS) announced it was embarking on a new phase of "its ambitious plan to transform scientific publishing", with the launch in 2005 of three new open-access journals: PLoS Computational Biology, PLoS Genetics, and PLoS Pathogens --------------------------------- 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/20050126/a368dd4d/attachment.html From tahir.amin at btopenworld.com Thu Jan 27 11:40:40 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Thu, 27 Jan 2005 06:10:40 +0000 (GMT) Subject: [Commons-Law] Microsoft makes anti-piracy move Message-ID: <20050127061040.94162.qmail@web86109.mail.ukl.yahoo.com> Microsoft makes anti-piracy move Microsoft says it is clamping down on people running pirated versions of its Windows operating system by restricting their access to security features. 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. Increased risk? People who try to manually download security patches will have to let Microsoft run an automated checking procedure on their computer or give an identification number. Microsoft's regular patches which it releases for newly-found security flaws are important because they stop worms, viruses and other threats penetrating PCs. Some security experts are concerned that restricting access to such patches could mean a rise in such attacks and threats, with more PCs left unprotected. But Graham Cluley, senior consultant at security firm Sophos, told the BBC News website that it was a positive decision. "It sounds like their decision to allow critical security patches to remain available to both legitimate and illegitimate users of Windows is good news for everyone who uses the net," he said. Windows Genuine Advantage was first introduced as a pilot scheme in September 2004 for English-language versions of Windows. Two-front battle Microsoft's Windows operating system is heavily exploited by virus writers because it is so widespread and they are constantly seeking out new security loopholes to take advantage of. The company is trying to tackle security threats whilst cracking down on pirated software at the same time. Software piracy has cost the company billions, it says. The company announced earlier in January that it was releasing security tools to clean up PCs harbouring viruses and spyware, which 90% of PCs are infected with. The virus-fighting program, updated monthly, is a precursor to Microsoft's dedicated anti-virus software. Last year it introduced the Windows XP Counterfeit Project, a UK-based pilot scheme, which ran from November to December. The scheme meant that anyone with pre-installed copies of the operating system in PCs bought before November could replace counterfeit versions of Windows XP with legal ones for free. It is also increasing efforts to squash software piracy in China, Norway and the Czech Republic, where pirated software is a huge problem, by offering discounts on legitimate software to users of pirated copies Windows. "China in particular is a problem, with piracy estimated at 92%," said Mr Cluley. --------------------------------- 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/20050127/4b2e61ce/attachment.html From jeebesh at sarai.net Sat Jan 29 17:48:39 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Sat, 29 Jan 2005 17:48:39 +0530 Subject: [Commons-Law] Report -John Frow- IPR and Public Domain In-Reply-To: <20050121132912.18005.qmail@webmail6.rediffmail.com> References: <20050121132912.18005.qmail@webmail6.rediffmail.com> Message-ID: <41FB7F1F.6010203@sarai.net> tina kuriakose wrote: > Please kindly note the accompanying attachment. > Am enclosing the plain text version of the report. PLEASE do not post attachments. The list is archived and the attachments are not great for archival purposes. ALSO attachments can carry virus and could affect many users. best list admin ----------------- Report- Contested Commons and Trespassing Publics: A Conference on Inequalities, Conflicts and Intellectual Property (6-8 January 2005) -submitted by TinaKuriakose, Ph. D. Research Scholar, International Law, JNU, New Delhi. The following is a report on the paper, entitled “ New World Order and the Public Domain”, presented by Prof. John Frow, University of Melbourne at the plenary session of the abovesaid Conference. Prof. Frow’s initiated a timely and well-articulated focus on the inequalities, struggles and pressures that dominate the world of intellectual property rights today. His paper primarily focused on the role of international institutions, national actors and treaties in spearheading negotiations in the realm of agricultural intellectual property rights (IPRs) and IPRs in pharmaceutical and genetic research. Prof. Frow drew attention to the amendment introduced in the IP law of Iraq through Order No. 81 (during the Coalition Provisional authority of Paul Bremer as administrator). Order 81 on “Patent, Industrial Design, Undisclosed Information, Integrated Circuits and Plant Variety”, was introduced on 26 April2004 and amends the Iraqi IP law as it stood in 1970. Through this example Frow wished to show how nations stronger particularly in their industrial and information resource bases have pushed previously recalcitrant and traditionalist knowledge bearers into bringing their IP laws in conformity with international obligations. Prof. Frow was however careful to point out that such a move on the part of countries like the U.S. should not be understood as an eagerness to bolster the cause of rule of law but rather to afford a greater penetration for MNCs in areas such as seed production. John Frow through his paper highlighted the steady movement of countries like Iraq and Canada from traditional seed saving farming techniques to one inclined towards faster development with farmers prohibited against the reuse of protected plant varieties. Prof. Frow’s critique involved a lament over the fact that IP protection over seed and plant varieties has ushered in privatization of the economy of developing countries thus abdicating the farmer’s role to the MNCs. Frow also showed through the instance of the Canola Case in the U.S. Supreme Court that TNCs essentially focus on major cash crops like soy beans so as to guarantee handsome returns. Prof. Frow believed that attempts to change the IPL in Iraq by the U.S. is reminiscent of the use of the 301 Clause by the USTR against counties like India to ensure the signing of the rather iniquitous TRIPs text. He also rightly pointed out that the Order promulgated prior to transfer of sovereignty to Iraq must be considered in the light of U.S. obligations under international law, particularly with regard to the economic responsibilities of occupying forces as envisaged in the Geneva Convention outlining the right and duties of state in Occupied Territories. Frow also drew attention to the new patent regime ushered in 2005 that would affect the right to health owing to the grant of both product and process patent on drugs. Frow considered the plight of countries like India compounded by the fact that India has on 27 December 2004 through the Patent (Amendment) Ordinance extended product patent protection to all fields of technology including drugs, food and chemicals. The Ordinance also fails to refer to the “national emergency” exception (as provide for in the Doha Declaration) and neither does the Ordinance seek to safeguard the Government’s prerogative to protect public health. Frow briefly referred to the trend of music swapping and piracy and in doing so thoughtfully considered the problems inherent in the reality of an expanding public domain. Of these, he identified incoherence and the problem involved in the allocation of rights that are “left-over.” Frow also made an important observation that the expansion of the public domain throws up the crucial question of representation of interests. He however considered that the open source software, libraries, scientists, academics, the sick and the old, teenagers downloading music on the internet and insurance bodies are important interest groups that cannot be easily ignored in the quest to identify contested commons and defining the “trespassing public.” Invitation to comment and suggest Important questions that emerge from the above paper that may be dwelt upon: With regard to the new Patent Law in Iraq, what is the place for limits on the rights of foreign investors to exploit domestic markets; In international law, where treaty making and ratification are considered acts of sovereignty, what is the place for the new law in Iraq, handed down by a provisional authority? Do the claims of the U.S. to urge nations to comply with international obligations amount to demanding IPR standards stricter than those under the WTO regime? Is the UPOV-style model plant variety protection included in the Iraqi patent law geared to benefit industrialized and commercial agricultural groups? What does the pinning down of farming techniques to breeder rights mean in terms of food production and food security? What is the scope of cultural values and norms in facilitating social exchange without debilitating the process of IPR protection? From ravikant at sarai.net Sat Jan 29 18:00:59 2005 From: ravikant at sarai.net (Ravikant) Date: Sat, 29 Jan 2005 18:00:59 +0530 Subject: [Commons-Law] query about IP in translation Message-ID: <200501291800.59651.ravikant@sarai.net> Dear experts, Could somebody please please fill me in on the exact IP regime that currently rules the publication of works translated in Indian languages, especially from the non-Indian languages? Is there a legal document I need to consult before deciding on publishing such a work? Sudhir once told me that Indian copyright system is different and non-obtrusive. Thanks in advance cheers ravikant From jeebesh at sarai.net Sat Jan 29 19:00:46 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Sat, 29 Jan 2005 19:00:46 +0530 Subject: [Commons-Law] THE INTRODUCTION OF COMMODITY ECONOMY Message-ID: <41FB9006.7030807@sarai.net> The Accumulation of Capital Rosa Luxemburg Chapter 28: THE INTRODUCTION OF COMMODITY ECONOMY ------------------------------------------------------------------------ The second condition of importance for acquiring means of production and realising the surplus value is the commodity exchange and commodity economy should be introduced in societies based on natural economy as soon as their independence has been abrogated, or rather in the course of this disruptive process. Capital requires to buy the products of, and sell its commodities to, all non-capitalist strata and societies. Here at last we seem to find the beginnings of that "peace" and equality', the do ut des, mutual interest, peaceful competition' and the influences of civilisation'. For capital can indeed deprive alien social associations of their means of production by force, it can compel the workers to submit to capitalist exploitation, but it cannot force them to buy its commodities or to realise its surplus value. In districts where natural economy formerly prevailed, the introduction of means of transport-railways, navigation, canals-is vital for the spreading of commodity economy, a further hopeful sign. The triumphant march of commodity economy thus begins in most cases with magnificent constructions of modern transport, such as railway lines which cross primeval forests and tunnel through the mountains, telegraph wires which bridge the deserts, and ocean liners which call at the most outlying ports. But it is a mere illusion that these are peaceful changes. Under the standard of commerce, the relations between the East India Company and the spice-producing countries were quite as piratical, extortionate and blatantly fraudulent as present-day relations between American capitalists and the Red Indians of Canada whose furs they buy, or between German merchants and the Negroes of Africa. Modern China presents a classical example of the gentle', peace-loving' practices of commodity exchange with backward countries. Throughout the nineteenth century, beginning with the early forties, her history has been punctuated by wars with the object of opening her up to trade by brute force. Missionaries provoked persecutions of Christians, Europeans instigated risings, and in periodical massacres a completely helpless and peaceful agrarian population was forced to match arms with the most modern capitalist military technique of all the Great Powers of Europe. Heavy war contributions necessitated a public debt, China taking up European loans, resulting in European control over her finances and occupation of her fortifications; the opening of free ports was enforced, railway concessions to European capitalists extorted. By all these measures commodity exchange was fostered in China, from the early thirties of the last century until the beginning of the Chinese revolution. European civilisation, that is to say commodity exchange with European capital, made its first impact on China with the Opium Wars when she was compelled to buy the drug from Indian plantations in order to make money for British capitalists. In the seventeenth century, the East India Company had introduced the cultivation of poppies in Bengal; the use of the drug was disseminated in China by its Canton branch. At the beginning of the nineteenth century, opium fell so considerably in price that it rapidly became the luxury of the people'. In 1821, 4,628 chests of opium were imported to China at an average price of £265; then the price fell by 50 per cent; and Chinese imports rose to 9,621 chests in 1825, and to 26,670 chests in 1830.^(1) The deadly effects of the drug, especially of the cheaper kinds used by the poorer population, became a public calamity and made it necessary for China to lay an embargo on imports, as an emergency measure. Already in 1828, the viceroy of Canton had prohibited imports of opium, only to deflect the trade to other ports. One of the Peking censors commanded to investigate the question gave the following report: 'I have learnt that people who smoke opium have developed such a craving for this noxious drug that they make every effort to obtain this gratification. If they do not get their opium at the usual hour, their limbs begin to tremble, they break out in sweat, and they cannot perform the slightest tasks. But as soon as they are given the pipe, they inhale a few, puffs and are cured immediately. "Opium has therefore become a necessity for all who smoke it and it is not surprising that under cross-examination by the local authorities they will submit to every punishment rather than reveal the names of their suppliers. Local authorities are also in some cases given presents to tolerate the evil or to delay any investigation already under way. Most merchants who bring goods for sale into Canton also deal in smuggled opium. "I am of the opinion that opium is by far a greater evil than gambling, and that opium smokers should therefore be punished no less than gamblers." The censor suggested that every convicted opium smoker should be sentenced to eighty strokes of the bamboo., and anybody refusing to give the name of his . supplier to a hundred strokes and three years of exile. The pig tailed Cato of Peking concludes his report with a frankness staggering to any European official: 'Apparently opium is mostly introduced from abroad by dishonest officials in connivance with profit-seeking merchants who transport it into! .the, interior of the country. Then the first to indulge are people of good family, wealthy private persons and merchants, but ultimately the drug habit spreads among the common people. I have learnt that in all provinces opium is smoked not only in the civil service but also in the army. The officials of the various districts indeed enjoin the legal prohibition of sale by special edicts. But at the same time, their parents, families, dependants and servants simply go on smoking opium, and the merchants profit from the ban by increased prices. Even the police have been won over; they buy the stuff instead of helping to suppress it, and this, is an additional reason for the disregard in which all prohibitions and ordinances are-held."^(2) Consequently, a stricter law was passed in 1833 which made every opium smoker liable to a hundred strokes and two months in the stocks, and provincial governors were ordered to report annually on their progress in the battle against opium. But there were two sequels to this campaign: on the one hand large-scale poppy plantations sprang up in the interior, particularly in the Honan, Setchuan, and Kueitchan provinces, and on the other, England declared war on China to get her to lift the embargo. These were the splendid beginnings of opening China' to European civilisation-by the opium pipe. Canton was the first objective. The fortifications of the town at the main arm of the Perl estuary could not have been more primitive. Every day at sunset a barrier of iron chains was attached to wooden rafts anchored at various distances, and this was the main defence. Moreover, the Chinese guns could only fire at a certain angle and were therefore completely ineffectual. With such primitive defences, just adequate to prevent a few merchant ships from landing, did the Chinese meet the British attack. A couple of British cruisers, then, sufficed to effect an entry on September 7, 1839. The sixteen battle-junks and thirteen fire-ships which the Chinese put up for resistance were shot up or dispersed in a matter of forty-five minutes. After this initial victory, the British renewed the attack in the beginning of 1841 with a considerably reinforced fleet. This time the fleet, consisting in a number of battle-junks, and the forts were attacked simultaneously. The first incendiary rocket that was fired penetrated through the armour casing of a junk into the powder chamber and blew the ship with the entire crew sky high. In a short time eleven junks, including the flag-ship, were destroyed, and the remainder precipitately made for safety. The action on land took a little longer. Since the Chinese guns were quite useless, the British walked right through the fortifications, climbed to a strategic position-which was not even guarded-and proceeded to slaughter the helpless Chinese from above. The casualty list of the battle was: for the Chinese 600 dead, and for the British, i dead and 30 wounded, more than half of the latter having been injured by the accidental explosion of a powder magazine. A few weeks later, there followed another British exploit. The forts of Anung-Hoy and North Wantong were to be taken. No less than twelve fully equipped cruisers were available for this task. What is more, the Chinese, once again forgetful of the most important thing, had omitted to fortify the island of South Wantong. Thus the British calmly landed a battery of howitzers to bombard the fort from one side, the cruisers shelling it from the other. After that, the Chinese were driven from the forts in a matter of minutes, and the landing met with no resistance. The ensuing display of inhumanity-an English report says-will be for ever deeply deplored by the British staff. The Chinese, trying to - escape from the barricades, had fallen into a moat which was soon literally filled to the brim with helpless soldiers begging for mercy. Into this mass of prostrate human bodies, the sepoys -- acting against orders, it is claimed-fired again and again. This is the way in which Canton Was made receptive to commodity exchange. Nor did the other ports fare better. On July 4, 1841, three British cruisers with 120 cannon appeared off the island in the entrance to the town of Ningpo. More cruisers arrived the following day. In the evening the! British admiral sent a message to the Chinese governor, demanding the capitulation of the island. The governor explained that he had no power to resist but could not surrender without orders from Peking. He therefore asked for a delay. This was refused, and at half-past two in the morning the British stormed the defenceless island. Within eight minutes, the fort and the houses on the shore were reduced to smouldering rubble. Having landed on the deserted coast littered with broken spears, sabres, shields, rifles and a few dead bodies, the troops! advanced on the walls of the island town of Tinghai. With daybreak, reinforced by the crews of other ships which had meanwhile arrived, they proceeded to put scaling! ladders to the scarcely defended ramparts.! A few more minutes gave them mastery of the town. This splendid victory was announced with becoming modesty in an Order of the Day: 'Fate has decreed that! the morning of July 5, 1841, should be the historic date on which Her Majesty's flag was first raised over the most beautiful island of the Celestial Empire, the first European flag to fly triumphantly above this lovely countryside." On August 25, 1841, the British approached the town of Amoy, whose forts were armed with a hundred of the heaviest Chinese guns. These guns being almost useless, and the commanders lacking in resource, the capture of the harbour was child's play. Under cover of a heavy barrage, British ships drew near the walls of Kulangau, landed their marines, and after a short stand the Chinese troops were driven out. The twenty-six battle-junks with 128 guns in the harbour were also captured, their crews having fled. One battery, manned by Tartars, heroically held out against the combined fire of three British ships, but a British landing was effected in their rear and the post wiped out. This was the finale of the notorious Opium War. By the peace treaty of August 27, 1842, the island of Hongkong was ceded to Britain. In addition, the towns of Canton, Amoy, Futchou, Ningpo and Shanghai were to open their ports to foreign commerce. But within fifteen years, there was a further war against China. This time, Britain had joined forces with the French. In 1857, the allied navies captured Canton with a heroism equal to that of the first war. By the peace of Ticntsin (I858), the opium traffic, European commerce and Christian missions were admitted into the interior. Already in 1859, however, the British resumed hostilities and attempted to destroy the Chinese fortifications on the Peiho river, but were driven off after a fierce battle in which 464 people were wounded or killed.^(3) After that, Britain and France again joined' forces. At the end of August 1860, 12,600 English and 7,500 French troops under General Cousin-Montauban first captured the Taku fort's Without a single shot having been fired. Then they proceeded towards Tientsin and on towards Peking A bloody battle was joined at Palilcao, and Peking fell to the European Powers. Entering the almost depopulated and completely undefended city, the victors began by pillaging the Imperial Palade, manfully helped by General Cousin himself, who was later to become field marshal and Count of Palikao. Then the Palace went up in flames', fired on Lord Elgin's order as an imposed penance.^(4) The European Powers now obtained concessions to set up embassies in Peking, and to start trading with Tientsin and other towns. The Tchith Convention of: 1876 guaranteed full facilities for importing opium into China-at a time when the Anti-Opiuth League in England agitated against the spreading' of the, drug habit n London, Manchester and other industrial districts, when a parliamentary commission declared the consumption of opium to be harmful in the extreme. By all treaties made at that time between China and the Great Powers any European, whether merchant or missionary, was guaranteed the right to acquire land, to which end the legitimate arguments were ably supported by deliberate frauds First and foremost the ambiguity of the treaty texts made a convenient excuse for European capital to encroach beyond the Treaty Ports. It used every loophole in the wording of the treaties to begin with, and subsequently blackmailed the Chinese government into permitting the missions to acquire land not alone in the Treaty Ports but in all the provinces of the realm. Their claim was based upon the notorious bare-faced distortion of the Chinese original in Abbe Delamarre's official translation of the supplementary convention with France French diplomacy, and the Protestant missions in particular, unanimously condemned the crafty swindle of the Catholic padre, but nevertheless they were firm that the rights of French missions obtained by this fraud should be explicitly extended to the Protestant missions as well.^(5) China's entry into commodity exchange, having begun with the Opium Wars, was finally accomplished with a series of "leases" and the China campaign of 1900, when the commercial interests of European capital sank to a brazen international dogfight over Chinese land. The description of the Dowager Empress, who wrote to Queen Victoria after the capture of the Taku forts, subtly underlines this contrast between the initial theory and the ultimate practice of the agents of European civilisation': "To your Majesty, greeting!-In all the dealings of England with the Empire of China, since first relations were established between us, there has never been any idea of territorial aggrandisement on the part of Great Britain, but only a keen desire to promote the interests of her trade. Reflecting upon the fact that our country is now plunged into a dreadful condition of warfare, we bear in mind that a large proportion of China's trade, seventy or eighty per cent, is done with England; moreover, your Customs duties are the lightest in the world, and few restrictions are made at your sea-ports in the matter of foreign importations; for these reasons our amiable relations with British merchants at our Treaty Ports have continued unbroken for the last half century, to our mutual benefit.But a sudden change has now occurred and general suspicion has been created against us. Wej would therefore ask you now to consider that if, by any conceivable combination of circumstances, the independence of our Empire should be lost, and the Powers unite to carry out, their long-plotted schemes to possess themselves of our territory'-(in a simultaneous message to the Emperor of Japan, the impulsive Thu Hsi openly refers to 'The earth-hungry Powers of the West, whose tigerish eyes of greed are fixed in our direction"^(6) )-'the results to your country's interests would be disastrous and fatal to your trade. At this moment our Empire is striving to the utmost to raise an army and funds sufficient for its protection; in the, meanwhile we rely on your good services to act as mediator, and now anxiously await your decision." Both during the wars and in the interim periods, European civilisation was busy looting and thieving on a grand scale in the Chinese Imperial Palaces, in the public buildings and in the monuments of ancient civilisation, not only in 1860, when the French pillaged the Emperor's Palace with its legendary treasures, or in 1900, when all the nations vied with each other to steal public and private property'. Every European advance was marked not only with the progress of commodity exchange, but by the smouldering ruins of the largest and most venerable towns, by the decay of agriculture over large rural areas, and by intolerably oppressive taxation for war contributions. There are more than 40 Chinese Treaty Ports-and every one of them has been paid for with streams of blood, with massacre and ruin. ------------------------------------------------------------------------ ^(1) 77,379 chests were imported in 1854. Later, the imports somewhat declined, owing to increased home production. Nevertheless, China remained the chief buyer. India produced just under 6,400,000 tons of opium in 1873/4, of which 6,100,000 tons were sold to the Chinese. To-day [x 952] India still exports 4,800,000 tons, value £7,500,000,000, almost exclusively to China and the Malay Archipelago. ^(2) Quoted by J. Scheibert, Der Krieg in China (1903), Vol. 2, 179 ^(3) An Imperial Edict issued on the third day of the eighth moon in the tenth year of Hsien-Feng (6/9/5 860) said amongst other things: 'We have never forbidden England and France to trade with China, and for long years there has been peace between them and us. But three years ago the English, for no good cause, invaded our city of Canton, and carried off our officials into captivity. We refrained at that time from taking any retaliatory measures, because we were compelled to recognise that the obstinacy of the Viceroy Yeh had been in some measure a cause of the hostilities. Two years ago, the barbarian Commander Elgin came north and we then commanded the Viceroy of Chihl1, T'an Ting-hsiang, to look into matters preparatory to negotiations. But the barbarian took advantage of our unreadiness, attacking the Taku forts and pressing on to Tientsin. Being anxious to spare our people the horrors of war, we again refrained from retaliation and ordered Kuei Liang to discuss terms of peace. Notwithstanding the outrageous nature of the barbarians' demands we subsequently ordered Kuei Liang to proceed to Shanghai in connection with the proposed Treaty of Commerce and even permitted its ratification as earnest of our good faith. "In spite of all this, the barbarian leader Bruce again displayed intractability of the most unreasonable kind, and once more appeared off Taku with a squadron of warships in the eighth Moon. Seng Ko Lin Ch'in thereupon attacked him fiercely and compelled him to make a rapid retreat From all these facts it is clear that China has committed no breach of faith and that the barbarians have been in the wrong. During the present year the barbarian leader Elgin and Grog have again appeared off out coasts, but China, unwilling to resort to extreme measures, agreed to their landing and permitted them to come to Peking for the ratification of the Treaty. "Who could have believed that all this time the barbarians have been darkly plotting; and that they had brought with them an army of soldiers and artillery with which they attacked the Taku forts from the rear, arid, having driven out our forces, advanced upon Tientsin!' (I. 0. Bland and E T. Blackhouse, China under the Empress Dowager (London, 1910), pp. 24-5Cf also in this work the entire chapter, 'The Flight to Yehol'.) ^(4) These European exploits to make China receptive to commodity exchange, provide the setting for a charming episode of China's internal history: Straight from looting the Manchu Emperor's Summer Palace, the 'Gordon of China' went on a campaign against the rebels of Taiping. Iithe suppression of the revolt was the work of the British army. But While a considerable number of Europeans, among them a French admiral, gave their lives to preserve China for the Manchu dynasty, the representatives of European commerce were eagerly grasping' this opportunity to make capital Out of these fights, supplying arms both to their own champions and to the rebels who went to war against them. Moreover, the worthy merchant was tempted, by the opportunity for making some money, to supply both armies with arms and munitions, and since the rebels had greater difficulties in obtaining' supplies than the Emperor's men and were therefore compelled and prepared to pay higher prices, they were given priority and could thus resist not only the troops of their own government but also those of England and France'.(M. cr. Brandt, 3 jahre in Ostauien, sgiz, Vol. 21, China, p 11). ^(5) Dr. 0. Frank; Die Rechtsverheltnisse am Grundeigentum in China (Leipzig, 1903), p. 82. ^(6) Bland and Blackhouse, op. cit., p. 338 ------------------------------------------------------------------------ The Accumulation of Capital From sunita_sreedharan at hotmail.com Mon Jan 31 10:27:09 2005 From: sunita_sreedharan at hotmail.com (Sunita Sreedharan) Date: Mon, 31 Jan 2005 10:27:09 +0530 Subject: [Commons-Law] RE: commons-law Digest, Vol 18, Issue 20 In-Reply-To: <20050130102334.CEC372916B5@mail.sarai.net> Message-ID: Hello Tina, Have read through the passage on Dr. Frow's analysis of the Patent (Amendment) Ordinance. The analysis may be relooked on the basis of the following facts : The "national emergency" exception was included in the Patents (Amendment) Act of 2002 which came into force on 20th May 2003. Please see Section 92(3). The same Section also elaborates on the Government's prerogative to protect publc health. Regards, Sunita K. Sreedharan Senior Associate & Patent Lawyer Anand & Anand, New Delhi Ordinance also fails to refer to the �national emergency� exception (as provide for in the Doha Declaration) and neither does the Ordinance seek to safeguard the Government�s prerogative to protect public health. Frow briefly referred to the trend of music swapping and piracy and in doing so thoughtfully considered the problems inherent in the reality 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 18, Issue 20 Date: Sun, 30 Jan 2005 11:23:34 +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. Re: Report -John Frow- IPR and Public Domain (Jeebesh Bagchi) 2. query about IP in translation (Ravikant) 3. THE INTRODUCTION OF COMMODITY ECONOMY (Jeebesh Bagchi) ---------------------------------------------------------------------- Message: 1 Date: Sat, 29 Jan 2005 17:48:39 +0530 From: Jeebesh Bagchi Subject: Re: [Commons-Law] Report -John Frow- IPR and Public Domain To: tina kuriakose Cc: commons-law at sarai.net Message-ID: <41FB7F1F.6010203 at sarai.net> Content-Type: text/plain; charset="windows-1252"; format=flowed tina kuriakose wrote: > Please kindly note the accompanying attachment. > Am enclosing the plain text version of the report. PLEASE do not post attachments. The list is archived and the attachments are not great for archival purposes. ALSO attachments can carry virus and could affect many users. best list admin ----------------- Report- Contested Commons and Trespassing Publics: A Conference on Inequalities, Conflicts and Intellectual Property (6-8 January 2005) -submitted by TinaKuriakose, Ph. D. Research Scholar, International Law, JNU, New Delhi. The following is a report on the paper, entitled � New World Order and the Public Domain�, presented by Prof. John Frow, University of Melbourne at the plenary session of the abovesaid Conference. Prof. Frow�s initiated a timely and well-articulated focus on the inequalities, struggles and pressures that dominate the world of intellectual property rights today. His paper primarily focused on the role of international institutions, national actors and treaties in spearheading negotiations in the realm of agricultural intellectual property rights (IPRs) and IPRs in pharmaceutical and genetic research. Prof. Frow drew attention to the amendment introduced in the IP law of Iraq through Order No. 81 (during the Coalition Provisional authority of Paul Bremer as administrator). Order 81 on �Patent, Industrial Design, Undisclosed Information, Integrated Circuits and Plant Variety�, was introduced on 26 April2004 and amends the Iraqi IP law as it stood in 1970. Through this example Frow wished to show how nations stronger particularly in their industrial and information resource bases have pushed previously recalcitrant and traditionalist knowledge bearers into bringing their IP laws in conformity with international obligations. Prof. Frow was however careful to point out that such a move on the part of countries like the U.S. should not be understood as an eagerness to bolster the cause of rule of law but rather to afford a greater penetration for MNCs in areas such as seed production. John Frow through his paper highlighted the steady movement of countries like Iraq and Canada from traditional seed saving farming techniques to one inclined towards faster development with farmers prohibited against the reuse of protected plant varieties. Prof. Frow�s critique involved a lament over the fact that IP protection over seed and plant varieties has ushered in privatization of the economy of developing countries thus abdicating the farmer�s role to the MNCs. Frow also showed through the instance of the Canola Case in the U.S. Supreme Court that TNCs essentially focus on major cash crops like soy beans so as to guarantee handsome returns. Prof. Frow believed that attempts to change the IPL in Iraq by the U.S. is reminiscent of the use of the 301 Clause by the USTR against counties like India to ensure the signing of the rather iniquitous TRIPs text. He also rightly pointed out that the Order promulgated prior to transfer of sovereignty to Iraq must be considered in the light of U.S. obligations under international law, particularly with regard to the economic responsibilities of occupying forces as envisaged in the Geneva Convention outlining the right and duties of state in Occupied Territories. Frow also drew attention to the new patent regime ushered in 2005 that would affect the right to health owing to the grant of both product and process patent on drugs. Frow considered the plight of countries like India compounded by the fact that India has on 27 December 2004 through the Patent (Amendment) Ordinance extended product patent protection to all fields of technology including drugs, food and chemicals. The Ordinance also fails to refer to the �national emergency� exception (as provide for in the Doha Declaration) and neither does the Ordinance seek to safeguard the Government�s prerogative to protect public health. Frow briefly referred to the trend of music swapping and piracy and in doing so thoughtfully considered the problems inherent in the reality of an expanding public domain. Of these, he identified incoherence and the problem involved in the allocation of rights that are �left-over.� Frow also made an important observation that the expansion of the public domain throws up the crucial question of representation of interests. He however considered that the open source software, libraries, scientists, academics, the sick and the old, teenagers downloading music on the internet and insurance bodies are important interest groups that cannot be easily ignored in the quest to identify contested commons and defining the �trespassing public.� Invitation to comment and suggest Important questions that emerge from the above paper that may be dwelt upon: With regard to the new Patent Law in Iraq, what is the place for limits on the rights of foreign investors to exploit domestic markets; In international law, where treaty making and ratification are considered acts of sovereignty, what is the place for the new law in Iraq, handed down by a provisional authority? Do the claims of the U.S. to urge nations to comply with international obligations amount to demanding IPR standards stricter than those under the WTO regime? Is the UPOV-style model plant variety protection included in the Iraqi patent law geared to benefit industrialized and commercial agricultural groups? What does the pinning down of farming techniques to breeder rights mean in terms of food production and food security? What is the scope of cultural values and norms in facilitating social exchange without debilitating the process of IPR protection? ------------------------------ Message: 2 Date: Sat, 29 Jan 2005 18:00:59 +0530 From: Ravikant Subject: [Commons-Law] query about IP in translation To: commons-law at sarai.net Message-ID: <200501291800.59651.ravikant at sarai.net> Content-Type: text/plain; charset="us-ascii" Dear experts, Could somebody please please fill me in on the exact IP regime that currently rules the publication of works translated in Indian languages, especially from the non-Indian languages? Is there a legal document I need to consult before deciding on publishing such a work? Sudhir once told me that Indian copyright system is different and non-obtrusive. Thanks in advance cheers ravikant ------------------------------ Message: 3 Date: Sat, 29 Jan 2005 19:00:46 +0530 From: Jeebesh Bagchi Subject: [Commons-Law] THE INTRODUCTION OF COMMODITY ECONOMY To: commons-law at sarai.net Message-ID: <41FB9006.7030807 at sarai.net> Content-Type: text/plain; charset="ISO-8859-1"; format=flowed The Accumulation of Capital Rosa Luxemburg Chapter 28: THE INTRODUCTION OF COMMODITY ECONOMY ------------------------------------------------------------------------ The second condition of importance for acquiring means of production and realising the surplus value is the commodity exchange and commodity economy should be introduced in societies based on natural economy as soon as their independence has been abrogated, or rather in the course of this disruptive process. Capital requires to buy the products of, and sell its commodities to, all non-capitalist strata and societies. Here at last we seem to find the beginnings of that "peace" and equality', the do ut des, mutual interest, peaceful competition' and the influences of civilisation'. For capital can indeed deprive alien social associations of their means of production by force, it can compel the workers to submit to capitalist exploitation, but it cannot force them to buy its commodities or to realise its surplus value. In districts where natural economy formerly prevailed, the introduction of means of transport-railways, navigation, canals-is vital for the spreading of commodity economy, a further hopeful sign. The triumphant march of commodity economy thus begins in most cases with magnificent constructions of modern transport, such as railway lines which cross primeval forests and tunnel through the mountains, telegraph wires which bridge the deserts, and ocean liners which call at the most outlying ports. But it is a mere illusion that these are peaceful changes. Under the standard of commerce, the relations between the East India Company and the spice-producing countries were quite as piratical, extortionate and blatantly fraudulent as present-day relations between American capitalists and the Red Indians of Canada whose furs they buy, or between German merchants and the Negroes of Africa. Modern China presents a classical example of the gentle', peace-loving' practices of commodity exchange with backward countries. Throughout the nineteenth century, beginning with the early forties, her history has been punctuated by wars with the object of opening her up to trade by brute force. Missionaries provoked persecutions of Christians, Europeans instigated risings, and in periodical massacres a completely helpless and peaceful agrarian population was forced to match arms with the most modern capitalist military technique of all the Great Powers of Europe. Heavy war contributions necessitated a public debt, China taking up European loans, resulting in European control over her finances and occupation of her fortifications; the opening of free ports was enforced, railway concessions to European capitalists extorted. By all these measures commodity exchange was fostered in China, from the early thirties of the last century until the beginning of the Chinese revolution. European civilisation, that is to say commodity exchange with European capital, made its first impact on China with the Opium Wars when she was compelled to buy the drug from Indian plantations in order to make money for British capitalists. In the seventeenth century, the East India Company had introduced the cultivation of poppies in Bengal; the use of the drug was disseminated in China by its Canton branch. At the beginning of the nineteenth century, opium fell so considerably in price that it rapidly became the luxury of the people'. In 1821, 4,628 chests of opium were imported to China at an average price of �265; then the price fell by 50 per cent; and Chinese imports rose to 9,621 chests in 1825, and to 26,670 chests in 1830.^(1) The deadly effects of the drug, especially of the cheaper kinds used by the poorer population, became a public calamity and made it necessary for China to lay an embargo on imports, as an emergency measure. Already in 1828, the viceroy of Canton had prohibited imports of opium, only to deflect the trade to other ports. One of the Peking censors commanded to investigate the question gave the following report: 'I have learnt that people who smoke opium have developed such a craving for this noxious drug that they make every effort to obtain this gratification. If they do not get their opium at the usual hour, their limbs begin to tremble, they break out in sweat, and they cannot perform the slightest tasks. But as soon as they are given the pipe, they inhale a few, puffs and are cured immediately. "Opium has therefore become a necessity for all who smoke it and it is not surprising that under cross-examination by the local authorities they will submit to every punishment rather than reveal the names of their suppliers. Local authorities are also in some cases given presents to tolerate the evil or to delay any investigation already under way. Most merchants who bring goods for sale into Canton also deal in smuggled opium. "I am of the opinion that opium is by far a greater evil than gambling, and that opium smokers should therefore be punished no less than gamblers." The censor suggested that every convicted opium smoker should be sentenced to eighty strokes of the bamboo., and anybody refusing to give the name of his . supplier to a hundred strokes and three years of exile. The pig tailed Cato of Peking concludes his report with a frankness staggering to any European official: 'Apparently opium is mostly introduced from abroad by dishonest officials in connivance with profit-seeking merchants who transport it into! .the, interior of the country. Then the first to indulge are people of good family, wealthy private persons and merchants, but ultimately the drug habit spreads among the common people. I have learnt that in all provinces opium is smoked not only in the civil service but also in the army. The officials of the various districts indeed enjoin the legal prohibition of sale by special edicts. But at the same time, their parents, families, dependants and servants simply go on smoking opium, and the merchants profit from the ban by increased prices. Even the police have been won over; they buy the stuff instead of helping to suppress it, and this, is an additional reason for the disregard in which all prohibitions and ordinances are-held."^(2) Consequently, a stricter law was passed in 1833 which made every opium smoker liable to a hundred strokes and two months in the stocks, and provincial governors were ordered to report annually on their progress in the battle against opium. But there were two sequels to this campaign: on the one hand large-scale poppy plantations sprang up in the interior, particularly in the Honan, Setchuan, and Kueitchan provinces, and on the other, England declared war on China to get her to lift the embargo. These were the splendid beginnings of opening China' to European civilisation-by the opium pipe. Canton was the first objective. The fortifications of the town at the main arm of the Perl estuary could not have been more primitive. Every day at sunset a barrier of iron chains was attached to wooden rafts anchored at various distances, and this was the main defence. Moreover, the Chinese guns could only fire at a certain angle and were therefore completely ineffectual. With such primitive defences, just adequate to prevent a few merchant ships from landing, did the Chinese meet the British attack. A couple of British cruisers, then, sufficed to effect an entry on September 7, 1839. The sixteen battle-junks and thirteen fire-ships which the Chinese put up for resistance were shot up or dispersed in a matter of forty-five minutes. After this initial victory, the British renewed the attack in the beginning of 1841 with a considerably reinforced fleet. This time the fleet, consisting in a number of battle-junks, and the forts were attacked simultaneously. The first incendiary rocket that was fired penetrated through the armour casing of a junk into the powder chamber and blew the ship with the entire crew sky high. In a short time eleven junks, including the flag-ship, were destroyed, and the remainder precipitately made for safety. The action on land took a little longer. Since the Chinese guns were quite useless, the British walked right through the fortifications, climbed to a strategic position-which was not even guarded-and proceeded to slaughter the helpless Chinese from above. The casualty list of the battle was: for the Chinese 600 dead, and for the British, i dead and 30 wounded, more than half of the latter having been injured by the accidental explosion of a powder magazine. A few weeks later, there followed another British exploit. The forts of Anung-Hoy and North Wantong were to be taken. No less than twelve fully equipped cruisers were available for this task. What is more, the Chinese, once again forgetful of the most important thing, had omitted to fortify the island of South Wantong. Thus the British calmly landed a battery of howitzers to bombard the fort from one side, the cruisers shelling it from the other. After that, the Chinese were driven from the forts in a matter of minutes, and the landing met with no resistance. The ensuing display of inhumanity-an English report says-will be for ever deeply deplored by the British staff. The Chinese, trying to - escape from the barricades, had fallen into a moat which was soon literally filled to the brim with helpless soldiers begging for mercy. Into this mass of prostrate human bodies, the sepoys -- acting against orders, it is claimed-fired again and again. This is the way in which Canton Was made receptive to commodity exchange. Nor did the other ports fare better. On July 4, 1841, three British cruisers with 120 cannon appeared off the island in the entrance to the town of Ningpo. More cruisers arrived the following day. In the evening the! British admiral sent a message to the Chinese governor, demanding the capitulation of the island. The governor explained that he had no power to resist but could not surrender without orders from Peking. He therefore asked for a delay. This was refused, and at half-past two in the morning the British stormed the defenceless island. Within eight minutes, the fort and the houses on the shore were reduced to smouldering rubble. Having landed on the deserted coast littered with broken spears, sabres, shields, rifles and a few dead bodies, the troops! advanced on the walls of the island town of Tinghai. With daybreak, reinforced by the crews of other ships which had meanwhile arrived, they proceeded to put scaling! ladders to the scarcely defended ramparts.! A few more minutes gave them mastery of the town. This splendid victory was announced with becoming modesty in an Order of the Day: 'Fate has decreed that! the morning of July 5, 1841, should be the historic date on which Her Majesty's flag was first raised over the most beautiful island of the Celestial Empire, the first European flag to fly triumphantly above this lovely countryside." On August 25, 1841, the British approached the town of Amoy, whose forts were armed with a hundred of the heaviest Chinese guns. These guns being almost useless, and the commanders lacking in resource, the capture of the harbour was child's play. Under cover of a heavy barrage, British ships drew near the walls of Kulangau, landed their marines, and after a short stand the Chinese troops were driven out. The twenty-six battle-junks with 128 guns in the harbour were also captured, their crews having fled. One battery, manned by Tartars, heroically held out against the combined fire of three British ships, but a British landing was effected in their rear and the post wiped out. This was the finale of the notorious Opium War. By the peace treaty of August 27, 1842, the island of Hongkong was ceded to Britain. In addition, the towns of Canton, Amoy, Futchou, Ningpo and Shanghai were to open their ports to foreign commerce. But within fifteen years, there was a further war against China. This time, Britain had joined forces with the French. In 1857, the allied navies captured Canton with a heroism equal to that of the first war. By the peace of Ticntsin (I858), the opium traffic, European commerce and Christian missions were admitted into the interior. Already in 1859, however, the British resumed hostilities and attempted to destroy the Chinese fortifications on the Peiho river, but were driven off after a fierce battle in which 464 people were wounded or killed.^(3) After that, Britain and France again joined' forces. At the end of August 1860, 12,600 English and 7,500 French troops under General Cousin-Montauban first captured the Taku fort's Without a single shot having been fired. Then they proceeded towards Tientsin and on towards Peking A bloody battle was joined at Palilcao, and Peking fell to the European Powers. Entering the almost depopulated and completely undefended city, the victors began by pillaging the Imperial Palade, manfully helped by General Cousin himself, who was later to become field marshal and Count of Palikao. Then the Palace went up in flames', fired on Lord Elgin's order as an imposed penance.^(4) The European Powers now obtained concessions to set up embassies in Peking, and to start trading with Tientsin and other towns. The Tchith Convention of: 1876 guaranteed full facilities for importing opium into China-at a time when the Anti-Opiuth League in England agitated against the spreading' of the, drug habit n London, Manchester and other industrial districts, when a parliamentary commission declared the consumption of opium to be harmful in the extreme. By all treaties made at that time between China and the Great Powers any European, whether merchant or missionary, was guaranteed the right to acquire land, to which end the legitimate arguments were ably supported by deliberate frauds First and foremost the ambiguity of the treaty texts made a convenient excuse for European capital to encroach beyond the Treaty Ports. It used every loophole in the wording of the treaties to begin with, and subsequently blackmailed the Chinese government into permitting the missions to acquire land not alone in the Treaty Ports but in all the provinces of the realm. Their claim was based upon the notorious bare-faced distortion of the Chinese original in Abbe Delamarre's official translation of the supplementary convention with France French diplomacy, and the Protestant missions in particular, unanimously condemned the crafty swindle of the Catholic padre, but nevertheless they were firm that the rights of French missions obtained by this fraud should be explicitly extended to the Protestant missions as well.^(5) China's entry into commodity exchange, having begun with the Opium Wars, was finally accomplished with a series of "leases" and the China campaign of 1900, when the commercial interests of European capital sank to a brazen international dogfight over Chinese land. The description of the Dowager Empress, who wrote to Queen Victoria after the capture of the Taku forts, subtly underlines this contrast between the initial theory and the ultimate practice of the agents of European civilisation': "To your Majesty, greeting!-In all the dealings of England with the Empire of China, since first relations were established between us, there has never been any idea of territorial aggrandisement on the part of Great Britain, but only a keen desire to promote the interests of her trade. Reflecting upon the fact that our country is now plunged into a dreadful condition of warfare, we bear in mind that a large proportion of China's trade, seventy or eighty per cent, is done with England; moreover, your Customs duties are the lightest in the world, and few restrictions are made at your sea-ports in the matter of foreign importations; for these reasons our amiable relations with British merchants at our Treaty Ports have continued unbroken for the last half century, to our mutual benefit.But a sudden change has now occurred and general suspicion has been created against us. Wej would therefore ask you now to consider that if, by any conceivable combination of circumstances, the independence of our Empire should be lost, and the Powers unite to carry out, their long-plotted schemes to possess themselves of our territory'-(in a simultaneous message to the Emperor of Japan, the impulsive Thu Hsi openly refers to 'The earth-hungry Powers of the West, whose tigerish eyes of greed are fixed in our direction"^(6) )-'the results to your country's interests would be disastrous and fatal to your trade. At this moment our Empire is striving to the utmost to raise an army and funds sufficient for its protection; in the, meanwhile we rely on your good services to act as mediator, and now anxiously await your decision." Both during the wars and in the interim periods, European civilisation was busy looting and thieving on a grand scale in the Chinese Imperial Palaces, in the public buildings and in the monuments of ancient civilisation, not only in 1860, when the French pillaged the Emperor's Palace with its legendary treasures, or in 1900, when all the nations vied with each other to steal public and private property'. Every European advance was marked not only with the progress of commodity exchange, but by the smouldering ruins of the largest and most venerable towns, by the decay of agriculture over large rural areas, and by intolerably oppressive taxation for war contributions. There are more than 40 Chinese Treaty Ports-and every one of them has been paid for with streams of blood, with massacre and ruin. ------------------------------------------------------------------------ ^(1) 77,379 chests were imported in 1854. Later, the imports somewhat declined, owing to increased home production. Nevertheless, China remained the chief buyer. India produced just under 6,400,000 tons of opium in 1873/4, of which 6,100,000 tons were sold to the Chinese. To-day [x 952] India still exports 4,800,000 tons, value �7,500,000,000, almost exclusively to China and the Malay Archipelago. ^(2) Quoted by J. Scheibert, Der Krieg in China (1903), Vol. 2, 179 ^(3) An Imperial Edict issued on the third day of the eighth moon in the tenth year of Hsien-Feng (6/9/5 860) said amongst other things: 'We have never forbidden England and France to trade with China, and for long years there has been peace between them and us. But three years ago the English, for no good cause, invaded our city of Canton, and carried off our officials into captivity. We refrained at that time from taking any retaliatory measures, because we were compelled to recognise that the obstinacy of the Viceroy Yeh had been in some measure a cause of the hostilities. Two years ago, the barbarian Commander Elgin came north and we then commanded the Viceroy of Chihl1, T'an Ting-hsiang, to look into matters preparatory to negotiations. But the barbarian took advantage of our unreadiness, attacking the Taku forts and pressing on to Tientsin. Being anxious to spare our people the horrors of war, we again refrained from retaliation and ordered Kuei Liang to discuss terms of peace. Notwithstanding the outrageous nature of the barbarians' demands we subsequently ordered Kuei Liang to proceed to Shanghai in connection with the proposed Treaty of Commerce and even permitted its ratification as earnest of our good faith. "In spite of all this, the barbarian leader Bruce again displayed intractability of the most unreasonable kind, and once more appeared off Taku with a squadron of warships in the eighth Moon. Seng Ko Lin Ch'in thereupon attacked him fiercely and compelled him to make a rapid retreat From all these facts it is clear that China has committed no breach of faith and that the barbarians have been in the wrong. During the present year the barbarian leader Elgin and Grog have again appeared off out coasts, but China, unwilling to resort to extreme measures, agreed to their landing and permitted them to come to Peking for the ratification of the Treaty. "Who could have believed that all this time the barbarians have been darkly plotting; and that they had brought with them an army of soldiers and artillery with which they attacked the Taku forts from the rear, arid, having driven out our forces, advanced upon Tientsin!' (I. 0. Bland and E T. Blackhouse, China under the Empress Dowager (London, 1910), pp. 24-5Cf also in this work the entire chapter, 'The Flight to Yehol'.) ^(4) These European exploits to make China receptive to commodity exchange, provide the setting for a charming episode of China's internal history: Straight from looting the Manchu Emperor's Summer Palace, the 'Gordon of China' went on a campaign against the rebels of Taiping. Iithe suppression of the revolt was the work of the British army. But While a considerable number of Europeans, among them a French admiral, gave their lives to preserve China for the Manchu dynasty, the representatives of European commerce were eagerly grasping' this opportunity to make capital Out of these fights, supplying arms both to their own champions and to the rebels who went to war against them. Moreover, the worthy merchant was tempted, by the opportunity for making some money, to supply both armies with arms and munitions, and since the rebels had greater difficulties in obtaining' supplies than the Emperor's men and were therefore compelled and prepared to pay higher prices, they were given priority and could thus resist not only the troops of their own government but also those of England and France'.(M. cr. Brandt, 3 jahre in Ostauien, sgiz, Vol. 21, China, p 11). ^(5) Dr. 0. Frank; Die Rechtsverheltnisse am Grundeigentum in China (Leipzig, 1903), p. 82. ^(6) Bland and Blackhouse, op. cit., p. 338 ------------------------------------------------------------------------ The Accumulation of Capital ------------------------------ _______________________________________________ commons-law mailing list commons-law at sarai.net https://mail.sarai.net/mailman/listinfo/commons-law End of commons-law Digest, Vol 18, Issue 20 ******************************************* _________________________________________________________________ 3 million brides and grooms. http://www.bharatmatrimony.com/cgi-bin/bmclicks1.cgi?74 Find your life-partner at BharatMatrimony.com From m.hardie at student.unsw.edu.au Sat Jan 29 23:33:14 2005 From: m.hardie at student.unsw.edu.au (Martin Hardie) Date: Sat, 29 Jan 2005 19:03:14 +0100 Subject: [Commons-Law] THE INTRODUCTION OF COMMODITY ECONOMY Message-ID: <200501291903.14520.m.hardie@student.unsw.edu.au> Jeebesh http://mozambique.twiki.us/twiki/bin/view/Main/CommonsAccumulation take care Martin On Saturday 29 January 2005 14:30, Jeebesh Bagchi wrote: > The Accumulation of Capital > Rosa Luxemburg > > > Chapter 28: THE INTRODUCTION OF COMMODITY ECONOMY > > ------------------------------------------------------------------------ > > The second condition of importance for acquiring means of production and > realising the surplus value is the commodity exchange and commodity > economy should be introduced in societies based on natural economy as > soon as their independence has been abrogated, or rather in the course > of this disruptive process. Capital requires to buy the products of, and > sell its commodities to, all non-capitalist strata and societies. Here > at last we seem to find the beginnings of that "peace" and equality', > the do ut des, mutual interest, peaceful competition' and the influences > of civilisation'. For capital can indeed deprive alien social > associations of their means of production by force, it can compel the > workers to submit to capitalist exploitation, but it cannot force them > to buy its commodities or to realise its surplus value. In districts > where natural economy formerly prevailed, the introduction of means of > transport-railways, navigation, canals-is vital for the spreading of > commodity economy, a further hopeful sign. The triumphant march of > commodity economy thus begins in most cases with magnificent > constructions of modern transport, such as railway lines which cross > primeval forests and tunnel through the mountains, telegraph wires which > bridge the deserts, and ocean liners which call at the most outlying > ports. But it is a mere illusion that these are peaceful changes. Under > the standard of commerce, the relations between the East India Company > and the spice-producing countries were quite as piratical, extortionate > and blatantly fraudulent as present-day relations between American > capitalists and the Red Indians of Canada whose furs they buy, or > between German merchants and the Negroes of Africa. Modern China > presents a classical example of the gentle', peace-loving' practices of > commodity exchange with backward countries. Throughout the nineteenth > century, beginning with the early forties, her history has been > punctuated by wars with the object of opening her up to trade by brute > force. Missionaries provoked persecutions of Christians, Europeans > instigated risings, and in periodical massacres a completely helpless > and peaceful agrarian population was forced to match arms with the most > modern capitalist military technique of all the Great Powers of Europe. > Heavy war contributions necessitated a public debt, China taking up > European loans, resulting in European control over her finances and > occupation of her fortifications; the opening of free ports was > enforced, railway concessions to European capitalists extorted. By all > these measures commodity exchange was fostered in China, from the early > thirties of the last century until the beginning of the Chinese revolution. > > European civilisation, that is to say commodity exchange with European > capital, made its first impact on China with the Opium Wars when she was > compelled to buy the drug from Indian plantations in order to make money > for British capitalists. In the seventeenth century, the East India > Company had introduced the cultivation of poppies in Bengal; the use of > the drug was disseminated in China by its Canton branch. At the > beginning of the nineteenth century, opium fell so considerably in price > that it rapidly became the luxury of the people'. In 1821, 4,628 chests > of opium were imported to China at an average price of £265; then the > price fell by 50 per cent; and Chinese imports rose to 9,621 chests in > 1825, and to 26,670 chests in 1830.^(1) > tm#foot-1> The deadly effects of the drug, especially of the cheaper kinds > used by the poorer population, became a public calamity and made it > necessary for China to lay an embargo on imports, as an emergency measure. > Already in 1828, the viceroy of Canton had prohibited imports of opium, > only to deflect the trade to other ports. One of the Peking censors > commanded to investigate the question gave the following report: > > 'I have learnt that people who smoke opium have developed such a craving > for this noxious drug that they make every effort to obtain this > gratification. If they do not get their opium at the usual hour, their > limbs begin to tremble, they break out in sweat, and they cannot perform > the slightest tasks. But as soon as they are given the pipe, they inhale > a few, puffs and are cured immediately. > > "Opium has therefore become a necessity for all who smoke it and it is > not surprising that under cross-examination by the local authorities > they will submit to every punishment rather than reveal the names of > their suppliers. Local authorities are also in some cases given presents > to tolerate the evil or to delay any investigation already under way. > Most merchants who bring goods for sale into Canton also deal in > smuggled opium. > > "I am of the opinion that opium is by far a greater evil than gambling, > and that opium smokers should therefore be punished no less than gamblers." > > The censor suggested that every convicted opium smoker should be > sentenced to eighty strokes of the bamboo., and anybody refusing to give > the name of his . supplier to a hundred strokes and three years of > exile. The pig tailed Cato of Peking concludes his report with a > frankness staggering to any European official: 'Apparently opium is > mostly introduced from abroad by dishonest officials in connivance with > profit-seeking merchants who transport it into! .the, interior of the > country. Then the first to indulge are people of good family, wealthy > private persons and merchants, but ultimately the drug habit spreads > among the common people. I have learnt that in all provinces opium is > smoked not only in the civil service but also in the army. The officials > of the various districts indeed enjoin the legal prohibition of sale by > special edicts. But at the same time, their parents, families, > dependants and servants simply go on smoking opium, and the merchants > profit from the ban by increased prices. Even the police have been won > over; they buy the stuff instead of helping to suppress it, and this, is > an additional reason for the disregard in which all prohibitions and > ordinances are-held."^(2) > tm#foot-2> > > > Consequently, a stricter law was passed in 1833 which made every opium > smoker liable to a hundred strokes and two months in the stocks, and > provincial governors were ordered to report annually on their progress > in the battle against opium. But there were two sequels to this > campaign: on the one hand large-scale poppy plantations sprang up in the > interior, particularly in the Honan, Setchuan, and Kueitchan provinces, > and on the other, England declared war on China to get her to lift the > embargo. These were the splendid beginnings of opening China' to > European civilisation-by the opium pipe. > > Canton was the first objective. The fortifications of the town at the > main arm of the Perl estuary could not have been more primitive. Every > day at sunset a barrier of iron chains was attached to wooden rafts > anchored at various distances, and this was the main defence. Moreover, > the Chinese guns could only fire at a certain angle and were therefore > completely ineffectual. With such primitive defences, just adequate to > prevent a few merchant ships from landing, did the Chinese meet the > British attack. A couple of British cruisers, then, sufficed to effect > an entry on September 7, 1839. The sixteen battle-junks and thirteen > fire-ships which the Chinese put up for resistance were shot up or > dispersed in a matter of forty-five minutes. After this initial victory, > the British renewed the attack in the beginning of 1841 with a > considerably reinforced fleet. This time the fleet, consisting in a > number of battle-junks, and the forts were attacked simultaneously. The > first incendiary rocket that was fired penetrated through the armour > casing of a junk into the powder chamber and blew the ship with the > entire crew sky high. In a short time eleven junks, including the > flag-ship, were destroyed, and the remainder precipitately made for > safety. The action on land took a little longer. Since the Chinese guns > were quite useless, the British walked right through the fortifications, > climbed to a strategic position-which was not even guarded-and proceeded > to slaughter the helpless Chinese from above. The casualty list of the > battle was: for the Chinese 600 dead, and for the British, i dead and 30 > wounded, more than half of the latter having been injured by the > accidental explosion of a powder magazine. A few weeks later, there > followed another British exploit. The forts of Anung-Hoy and North > Wantong were to be taken. No less than twelve fully equipped cruisers > were available for this task. What is more, the Chinese, once again > forgetful of the most important thing, had omitted to fortify the island > of South Wantong. Thus the British calmly landed a battery of howitzers > to bombard the fort from one side, the cruisers shelling it from the > other. After that, the Chinese were driven from the forts in a matter of > minutes, and the landing met with no resistance. The ensuing display of > inhumanity-an English report says-will be for ever deeply deplored by > the British staff. The Chinese, trying to - escape from the barricades, > had fallen into a moat which was soon literally filled to the brim with > helpless soldiers begging for mercy. Into this mass of prostrate human > bodies, the sepoys -- acting against orders, it is claimed-fired again > and again. This is the way in which Canton Was made receptive to > commodity exchange. > > Nor did the other ports fare better. On July 4, 1841, three British > cruisers with 120 cannon appeared off the island in the entrance to the > town of Ningpo. More cruisers arrived the following day. In the evening > the! British admiral sent a message to the Chinese governor, demanding > the capitulation of the island. The governor explained that he had no > power to resist but could not surrender without orders from Peking. He > therefore asked for a delay. This was refused, and at half-past two in > the morning the British stormed the defenceless island. Within eight > minutes, the fort and the houses on the shore were reduced to > smouldering rubble. Having landed on the deserted coast littered with > broken spears, sabres, shields, rifles and a few dead bodies, the > troops! advanced on the walls of the island town of Tinghai. With > daybreak, reinforced by the crews of other ships which had meanwhile > arrived, they proceeded to put scaling! ladders to the scarcely defended > ramparts.! A few more minutes gave them mastery of the town. This > splendid victory was announced with becoming modesty in an Order of the > Day: 'Fate has decreed that! the morning of July 5, 1841, should be the > historic date on which Her Majesty's flag was first raised over the most > beautiful island of the Celestial Empire, the first European flag to fly > triumphantly above this lovely countryside." > > On August 25, 1841, the British approached the town of Amoy, whose forts > were armed with a hundred of the heaviest Chinese guns. These guns being > almost useless, and the commanders lacking in resource, the capture of > the harbour was child's play. Under cover of a heavy barrage, British > ships drew near the walls of Kulangau, landed their marines, and after a > short stand the Chinese troops were driven out. The twenty-six > battle-junks with 128 guns in the harbour were also captured, their > crews having fled. One battery, manned by Tartars, heroically held out > against the combined fire of three British ships, but a British landing > was effected in their rear and the post wiped out. > > This was the finale of the notorious Opium War. By the peace treaty of > August 27, 1842, the island of Hongkong was ceded to Britain. In > addition, the towns of Canton, Amoy, Futchou, Ningpo and Shanghai were > to open their ports to foreign commerce. But within fifteen years, there > was a further war against China. This time, Britain had joined forces > with the French. In 1857, the allied navies captured Canton with a > heroism equal to that of the first war. By the peace of Ticntsin (I858), > the opium traffic, European commerce and Christian missions were > admitted into the interior. Already in 1859, however, the British > resumed hostilities and attempted to destroy the Chinese fortifications > on the Peiho river, but were driven off after a fierce battle in which > 464 people were wounded or killed.^(3) > tm#foot-3> > > > After that, Britain and France again joined' forces. At the end of > August 1860, 12,600 English and 7,500 French troops under General > Cousin-Montauban first captured the Taku fort's Without a single shot > having been fired. Then they proceeded towards Tientsin and on towards > Peking A bloody battle was joined at Palilcao, and Peking fell to the > European Powers. Entering the almost depopulated and completely > undefended city, the victors began by pillaging the Imperial Palade, > manfully helped by General Cousin himself, who was later to become field > marshal and Count of Palikao. Then the Palace went up in flames', fired > on Lord Elgin's order as an imposed penance.^(4) > tm#foot-4> > > > The European Powers now obtained concessions to set up embassies in > Peking, and to start trading with Tientsin and other towns. The Tchith > Convention of: 1876 guaranteed full facilities for importing opium into > China-at a time when the Anti-Opiuth League in England agitated against > the spreading' of the, drug habit n London, Manchester and other > industrial districts, when a parliamentary commission declared the > consumption of opium to be harmful in the extreme. By all treaties made > at that time between China and the Great Powers any European, whether > merchant or missionary, was guaranteed the right to acquire land, to > which end the legitimate arguments were ably supported by deliberate frauds > > First and foremost the ambiguity of the treaty texts made a convenient > excuse for European capital to encroach beyond the Treaty Ports. It used > every loophole in the wording of the treaties to begin with, and > subsequently blackmailed the Chinese government into permitting the > missions to acquire land not alone in the Treaty Ports but in all the > provinces of the realm. Their claim was based upon the notorious > bare-faced distortion of the Chinese original in Abbe Delamarre's > official translation of the supplementary convention with France French > diplomacy, and the Protestant missions in particular, unanimously > condemned the crafty swindle of the Catholic padre, but nevertheless > they were firm that the rights of French missions obtained by this fraud > should be explicitly extended to the Protestant missions as well.^(5) > tm#foot-5> > > > China's entry into commodity exchange, having begun with the Opium Wars, > was finally accomplished with a series of "leases" and the China > campaign of 1900, when the commercial interests of European capital sank > to a brazen international dogfight over Chinese land. The description of > the Dowager Empress, who wrote to Queen Victoria after the capture of > the Taku forts, subtly underlines this contrast between the initial > theory and the ultimate practice of the agents of European civilisation': > > "To your Majesty, greeting!-In all the dealings of England with the > Empire of China, since first relations were established between us, > there has never been any idea of territorial aggrandisement on the part > of Great Britain, but only a keen desire to promote the interests of her > trade. Reflecting upon the fact that our country is now plunged into a > dreadful condition of warfare, we bear in mind that a large proportion > of China's trade, seventy or eighty per cent, is done with England; > moreover, your Customs duties are the lightest in the world, and few > restrictions are made at your sea-ports in the matter of foreign > importations; for these reasons our amiable relations with British > merchants at our Treaty Ports have continued unbroken for the last half > century, to our mutual benefit.But a sudden change has now occurred and > general suspicion has been created against us. Wej would therefore ask > you now to consider that if, by any conceivable combination of > circumstances, the independence of our Empire should be lost, and the > Powers unite to carry out, their long-plotted schemes to possess > themselves of our territory'-(in a simultaneous message to the Emperor > of Japan, the impulsive Thu Hsi openly refers to 'The earth-hungry > Powers of the West, whose tigerish eyes of greed are fixed in our > direction"^(6) > tm#foot-6> )-'the results to your country's interests would be disastrous > and fatal to your trade. At this moment our Empire is striving to the > utmost to raise an army and funds sufficient for its protection; in the, > meanwhile we rely on your good services to act as mediator, and now > anxiously await your decision." > > Both during the wars and in the interim periods, European civilisation > was busy looting and thieving on a grand scale in the Chinese Imperial > Palaces, in the public buildings and in the monuments of ancient > civilisation, not only in 1860, when the French pillaged the Emperor's > Palace with its legendary treasures, or in 1900, when all the nations > vied with each other to steal public and private property'. Every > European advance was marked not only with the progress of commodity > exchange, but by the smouldering ruins of the largest and most venerable > towns, by the decay of agriculture over large rural areas, and by > intolerably oppressive taxation for war contributions. There are more > than 40 Chinese Treaty Ports-and every one of them has been paid for > with streams of blood, with massacre and ruin. > > ------------------------------------------------------------------------ > > ^(1) > tm#doc-1> 77,379 chests were imported in 1854. Later, the imports somewhat > declined, owing to increased home production. Nevertheless, China > remained the chief buyer. India produced just under 6,400,000 tons of > opium in 1873/4, of which 6,100,000 tons were sold to the Chinese. > To-day [x 952] India still exports 4,800,000 tons, value £7,500,000,000, > almost exclusively to China and the Malay Archipelago. > > ^(2) > tm#doc-2> Quoted by J. Scheibert, Der Krieg in China (1903), Vol. 2, 179 > > ^(3) > tm#doc-3> An Imperial Edict issued on the third day of the eighth moon in > the tenth year of Hsien-Feng (6/9/5 860) said amongst other things: 'We > have never forbidden England and France to trade with China, and for long > years there has been peace between them and us. But three years ago the > English, for no good cause, invaded our city of Canton, and carried off our > officials into captivity. We refrained at that time from taking any > retaliatory measures, because we were compelled to recognise that the > obstinacy of the Viceroy Yeh had been in some measure a cause of the > hostilities. Two years ago, the barbarian Commander Elgin came north and we > then commanded the Viceroy of Chihl1, T'an Ting-hsiang, to look into > matters preparatory to negotiations. But the barbarian took advantage of > our unreadiness, attacking the Taku forts and pressing on to Tientsin. > Being anxious to spare our people the horrors of war, we again refrained > from retaliation and ordered Kuei Liang to discuss terms of peace. > Notwithstanding the outrageous nature of the barbarians' demands we > subsequently ordered Kuei Liang to proceed to Shanghai in connection with > the proposed Treaty of Commerce and even permitted its ratification as > earnest of our good faith. > > "In spite of all this, the barbarian leader Bruce again displayed > intractability of the most unreasonable kind, and once more appeared off > Taku with a squadron of warships in the eighth Moon. Seng Ko Lin Ch'in > thereupon attacked him fiercely and compelled him to make a rapid > retreat From all these facts it is clear that China has committed no > breach of faith and that the barbarians have been in the wrong. During > the present year the barbarian leader Elgin and Grog have again appeared > off out coasts, but China, unwilling to resort to extreme measures, > agreed to their landing and permitted them to come to Peking for the > ratification of the Treaty. > > "Who could have believed that all this time the barbarians have been > darkly plotting; and that they had brought with them an army of soldiers > and artillery with which they attacked the Taku forts from the rear, > arid, having driven out our forces, advanced upon Tientsin!' (I. 0. > Bland and E T. Blackhouse, China under the Empress Dowager (London, > 1910), pp. 24-5Cf also in this work the entire chapter, 'The Flight to > Yehol'.) > > ^(4) > tm#doc-4> These European exploits to make China receptive to commodity > exchange, provide the setting for a charming episode of China's internal > history: Straight from looting the Manchu Emperor's Summer Palace, the > 'Gordon of China' went on a campaign against the rebels of Taiping. Iithe > suppression of the revolt was the work of the British army. But While a > considerable number of Europeans, among them a French admiral, gave > their lives to preserve China for the Manchu dynasty, the > representatives of European commerce were eagerly grasping' this > opportunity to make capital Out of these fights, supplying arms both to > their own champions and to the rebels who went to war against them. > Moreover, the worthy merchant was tempted, by the opportunity for making > some money, to supply both armies with arms and munitions, and since the > rebels had greater difficulties in obtaining' supplies than the > Emperor's men and were therefore compelled and prepared to pay higher > prices, they were given priority and could thus resist not only the > troops of their own government but also those of England and France'.(M. > cr. Brandt, 3 jahre in Ostauien, sgiz, Vol. 21, China, p 11). > > ^(5) > tm#doc-5> Dr. 0. Frank; Die Rechtsverheltnisse am Grundeigentum in China > (Leipzig, 1903), p. 82. > > ^(6) > tm#doc-6> Bland and Blackhouse, op. cit., p. 338 > > ------------------------------------------------------------------------ > > The Accumulation of Capital > htm> > > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law -- "the riddle which man must solve, he can only solve in being, in being what he is and not something else...." http://auskadi.tk ------------------------------------------------------- -- :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: "the riddle which man must solve, he can only solve in being, in being what he is and not something else...." http://auskadi.tk :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: From jeebesh at sarai.net Sat Jan 29 19:00:14 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Sat, 29 Jan 2005 19:00:14 +0530 Subject: [Commons-Law] THE STRUGGLE AGAINST NATURAL ECONOMY Message-ID: <41FB8FE6.7000901@sarai.net> The Accumulation of Capital Rosa Luxemburg Chapter 27: THE STRUGGLE AGAINST NATURAL ECONOMY ------------------------------------------------------------------------ CAPITALISM arises and develops historically amidst a non-capitalist society. In Western Europe-it is found at first in a feudal environment from which it in fact sprang the system of bondage in rural areas and the guild system in the towns-and later, after having swallowed up the feudal system, it exists mainly in an environment of peasants and artisans, that is to say in a system of simple commodity production both in agriculture and trade European capitalism is further surrounded by vast territories of non-European civilisation ranging over all levels of development, from the primitive communist hordes of nomad herdsmen, hunters and gatherers to commodity production by peasants and artisans. This is the setting for the accumulation of capital. We must distinguish three phases: the struggle of capital against natural economy, the struggle against commodity economy, and the competitive struggle of capital on the international stage for the remaining conditions of accumulation. The existence and development of capitalism requires an environment of non-capitalist forms of production, but not every one of these forms will serve its ends. Capitalism needs non-capitalist social strata as a market for its surplus value, as a source of supply for its means of production and as a reservoir of labour power for its wage system. For all these purposes, forms of production based upon a natural economy are of no use to capital. In all social organisations where natural economy prevails, where there are primitive peasant communities with common ownership of the land, a feudal system of bondage or anything of this nature, economic organisation is essentially in response to the internal demand; and therefore there is no demand, or very little, for foreign goods, and also, as a rule, no surplus production, or at least no urgent need to dispose of surplus products. What is most important, however, is that, in any natural economy, production only goes on because both means of production and labour power are bound in one form or another. The communist peasant community no less than the feudal corvee farm and similar institutions maintain their economic organisation by subjecting the labour power, and the most important means of production, the land, to the rule of law and custom. A natural economy thus confronts the requirements of capitalism at every turn with rigid barriers. Capitalism must therefore always and everywhere fight a battle of annihilation against every historical form of natural economy that it encounters, whether this is slave economy, feudalism, primitive communism, or patriarchal peasant economy. The principal methods in this struggle are political force (revolution, war), oppressive taxation by the state, and cheap goods; they are partly applied simultaneously, and partly they succeed and complement one another. In Europe, force assumed revolutionary forms in the fight against feudalism (this is the ultimate explanation of the bourgeois revolutions in the seventeenth, eighteenth and nineteenth centuries); in the non-European countries, where it fights more primitive social organisations, it assumes the forms of colonial policy. These methods, together with the systems of taxation applied in such cases, and commercial relations also, particularly with primitive communities, form an affiance in which political power and economic factors go hand in hand. In detail, capital in its struggle against societies with a natural economy pursues the following ends: (1) To gain immediate possession of important sources of productive forces such as land, game in primeval forests, minerals, precious stones and ores, products of exotic flora such as rubber, etc. (2) To "liberate" labour power and to coerce it into service. (3) To introduce a commodity economy. (4) To separate trade and agriculture. At the time of primitive accumulation, i.e at the end of the Middle Ages, when the history of capitalism in Europe began, and right into the nineteenth century, dispossessing the peasants in England and on the Continent was the most striking weapon in the large-scale transformation of means of production and labour power into capital. Yet capital in power performs the same task even to-day, and on an even more important scale by modern colonial policy. It is an illusion to hope that capitalism will ever be content with the means of production which it can acquire by way of commodity exchange. In this respect already, capital is faced with difficulties because vast tracts of the globe's surface are in the possession of social organisations that have no desire for commodity exchange or cannot, because of the entire social structure and the forms of ownership, offer for sale the productive forces in which capital is primarily interested. The most important of these productive forces is of course the land, its hidden mineral treasure, and its meadows, woods and water, and further the flocks of the primitive shepherd tribes. If capital were here to rely on the process of slow internal disintegration, it might take centuries. To wait patiently until the most important means of production could be alienated by trading in consequence of this process were tantamount to renouncing the productive forces of those territories altogether. Hence derives the vital necessity for capitalism in its relations with colonial countries to appropriate the most important means of production. Since the primitive associations of the natives are the strongest protection for their social organisations and for their material bases of existence, capital must begin by planning for the systematic destruction and annihilation of all the non-capitalist social units which obstruct its development. With that we have passed beyond the stage of primitive accumulation; this process is still going on. Each new colonial expansion is accompanied, as a matter of course, by a relentless battle of capital against the social and economic ties of the natives, who are also forcibly robbed of their means of production and labour power. Any hope to restrict the accumulation of capital exclusively to peaceful competition', i.e to regular commodity exchange such as takes place between capitalist producer-countries, rests on the pious belief that capital can accumulate without mediation of the productive forces and without the demand of more primitive organisations, and that it can rely upon the slow internal process of a disintegrating natural economy. Accumulation, with its spasmodic expansion, can no more wait for, and be content with, a natural internal disintegration of non-capitalist formations and their transition to commodity economy, than it can wait for, and be content with, the natural increase of the working population. Force is the only solution open to capital; the accumulation of capital, seen as an historical process, employs force as a permanent weapon, not only at its genesis, but further on down to the present day. From the point of view of the primitive societies involved, it is a matter of life or death; for them there can be no other attitude than opposition and fight to the finish-complete exhaustion and extinction. Hence permanent occupation of the colonies by the military, native risings and punitive expeditions are the order of the day for any colonial regime. The method of violence, then, is the immediate consequence of the clash between capitalism and the organisations of a natural economy which would restrict accumulation. Their means of production and their labour power no less than their demand for surplus products is necessary to capitalism. Yet the latter is frilly determined to undermine their independence as social units, in order to gain possession of their means of production and labour power and to convert them into commodity buyers. This method is the most profitable and gets the quickest results, and so it is also the most expedient for capital. In fact, it is invariably accompanied by a growing militarism whose importance for accumulation will be demonstrated below in another connection. British policy in India and French policy in Algeria are the classical examples of the application of these methods by capitalism. The ancient economic organisations of the Indians-the communist village community-had been preserved in their various forms throughout thousands of years, in spite of all the political disturbances during their long history. In the sixth century B.C. the Persians invaded the Indus basin and subjected part of the country. Two centuries later the Greeks entered and left behind them colonies, founded by Alexander on the pattern of a completely alien civilisation. Then the savage Scythians invaded the country, and for centuries India remained under Arab rule. Later, the Afghans swooped down from the Iran mountains, until they, too, were expelled by the ruthless onslaught of Tartar hordes. The Mongols' path was marked by terror and destruction, by the massacre of entire villages-the peaceful countryside with the tender shoots of rice made crimson with blood. And still the Indian village community survived. For none of the successive Mahometan conquerors had ultimately violated the internal social life of the peasant masses and its traditional structure. They only set up their-own governors in the provinces to supervise military organisation and to collect taxes from the population. All conquerors pursued the aim of dominating and exploiting the country, but none was interested in robbing the people of their productive forces and in destroying their social organisation. In the Moghul Empire, the peasant had to pay his annual tribute in kind to the foreign ruler, but he could live undisturbed in his village and could cultivate his rice on his sithigura as his father had done before him. Then came the British-and the blight of capitalist civilisation succeeded in disrupting the entire social organisation of the people; it achieved in a short time what thousands of years, what the sword of the Nogaians, had failed to accomplish. The ultimate purpose of British capital was to possess itself of the very basis of existence of the Indian community: the land. This end was served above all by the fiction, always popular with European colonisers, that all the land of a colony belongs to the political - ruler. In retrospect, the British endowed the Moghul and his governors with private ownership of the whole of India, in order to "legalise" their succession. Economic `experts of the highest repute, such as James Mill, duly supported this fiction — with scientific' arguments, so in particular with the famous conclusion given below.^(1) As early as 1793, the British in Bengal gave landed property to all the zemindars (Mahometan tax collectors) or hereditary market superintendents they had found in their district so as to win native support for the campaign against the peasant masses. Later they adopted the same policy for their new conquests in the Agram province, in Oudh, and in the Central Provinces. Turbulent peasant risings followed in their wake, in the course of which tax collectors were frequently driven out. In the resulting confusion and anarchy British capitalists successfully appropriated a considerable portion of the land. The burden of taxation, moreover, was so ruthlessly increased that it swallowed up nearly all the fruits of the people's labour. This went to such an extreme in the Delhi and Allahabad districts that, according to the official evidence of the British tax authorities in 1854, the peasants found it convenient to lease or pledge their shares in land for the bare amount of the tax levied. Under the auspices of this taxation, usury came to the Indian village, to stay and eat up the social organisation from within like a canker.^(2) In order to accelerate this process, the British passed a law that flew in the face of every tradition and justice known to the village community: compulsory alienation of village land for tax arrears. In vain did the old family associations try to protect themselves by options on their hereditary land and that of theft kindred. There was no stopping the rot. Every day another plot of land fell under the hammer; individual members withdrew from the family unit, and the peasants got into debt and lost theft land. The British, with their wonted colonial stratagems tried to make it appear as if theft power policy, which had in fact undermined the traditional forms of landownership and brought about the collapse of the Hindu peasant economy, had been dictated by the need to protect the peasants against native oppression and exploitation and served to safeguard their own interests.^(3) Britain artificially created a landed aristocracy at the expense of the ancient property-rights of the peasant communities, and then proceeded to "protect" the peasants against these alleged oppressors, and to bring this illegally usurped land into the possession of British capitalists. Thus large estates developed in India in a short time, while over large areas the peasants in their masses were turned into impoverished small tenants with a short-term lease. Lastly, one more striking fact shows the typically capitalist method of colonisation. The British were the first conquerors of India who showed gross indifference to public utilities. Arabs, Afghans and Mongols had organised and maintained magnificent works of canalisation in India, they had given the country a network of roads, spanned the rivers with bridges and seen to the sinking of wells. Timur or Tamerlane, the founder of the Mongol dynasty in India, had a care for the cultivation of the soil, for irrigation, for the safety of the roads and the provision of food for travellers.^(4) The primitive Indian Rajahs, the Afghan or Mongol conquerors, at any rate, in spite of occasional cruelty against individuals, made their mark with the marvellous constructions we can find to-day at every step and which seem to be the work of a giant race. 'The (East India) Company which ruled India until 1858 did not make one spring accessible, did not sink a single well, nor build a bridge for the benefit of the Indians.'^(5) Another witness, the Englishman James Wilson, says: 'In the Madras Province, no-one can help being impressed by the magnificent ancient irrigation systems, traces of which have been preserved until our time. Locks and weirs dam the rivers into great lakes, from which canals distribute the water for an area of 60 or 70 miles around. On the large rivers, there are 30 to 40 of such weirs ... The rain water from the mountains was collected in artificial ponds, many of which still remain and boast circumferences of between 15 and 25 miles. Nearly all these gigantic constructions were completed before the year 1750. During the war between the Company and the Mongol rulers-and, be it said, during the entire period of our rule in India they have sadly decayed."^(6) No Wonder! British capital had no object in giving the Indian communities economic support or helping them to survive. Quite the reverse, it aimed to destroy them and to deprive them of their productive forces. The unbridled greed, the acquisitive instinct of accumulation must by its very nature take every advantage of the conditions of the market' and can have no thought for the morrow. It is incapable of seeing.far enough to recognise the value of the economic monuments of an older civilisation. (Recently British engineers in Egypt feverishly, tried to discover traces of an ancient irrigation system rather like the One -a stupid lack of Vision had allowed to decay in India when they were charged with damming the Nile on a grand scale in furtherance of capitalist enterprise.) Not until 1867 was England able to appreciate the results of her noble efforts in this respect. In the terrible famine of that year a million people were killed in the Orissa district alone; and Parliament was shocked into investigating the causes of the emergency. The British government has now introduced administrative measures in an attempt to save the peasant from usury. The Punjab Alienation Act of i oo made it illegal to sell or mortgage peasant lands to persons other than of the peasant caste, though exceptions can be made in individual cases, subject to the tax collector's approval.^(7) Having deliberately disrupted the protecting ties of the ancient Hindu social associations, after having nurtured a system of usury where nothing is thought of a 15 per cent charge of interest, the British now entrust the ruined Indian peasant to the tender care of the Exchequer and its officials, under the protection', that is to say, of those draining him of his livelihood. Next to tormented British India, Algeria under French rule claims pride of place in the annals of capitalist colonisation. When the French conquered Algeria, ancient social and economic institutions prevailed among the Arab-Kabyle population. These had been preserved until the nineteenth century, and in spite of the long and turbulent history of the country they survive in part even to the present day. Private property may have existed no doubt in the towns, among the Moors and Jews, among merchants, artisans and usurers. Large rural areas may have been seized by the State under Turkish suzerainty-yet nearly half of the productive land is jointly held by Arab and Kabyle tribes who still keep up the ancient patriarchal customs. Many Arab families led the same kind of nomad life in the nineteenth century as they had done since time immemorial, an existence that appears restless and irregular only to the superficial observer, but one that is in fact strictly regulated and extremely monotonous. In summer they were wont, man, woman and child, to take theft herds and tents and migrate to the sea-swept shores of the Tell district; and in the winter they would move back again to the protective warmth of the desert. They travelled along definite routes, and the summer and winter stations were fixed for every tribe and family. The fields of those Arabs who had settled on the land were in most cases the joint property of the clans, and the great Kabyle family associations also lived according to old traditional rules under the patriarchal guidance of their elected heads. The women would take turns for household duties; a matriarch, again elected by the family, being in complete charge of the clan's domestic affairs, or else the women taking turns of duty. This organisation of the ICabyle clans on the fringe of the African desert bears a startling resemblance to that of the famous Southern Slavonic Zadruga-not only the fields but all the tools, weapons and monies, all that the members acquire or need for their work, are communal property of the clan. Personal property is confined to one suit of clothing, and in the case of a woman to the dresses and ornaments of her dowry. More valuable attire and jewels, however, are considered common property, and individuals were allowed to use them only if the whole family approved. If the clan was not too numerous, meals were taken at a common table; the women took it in turns to cook, but the eldest were entrusted with the dishing out. If a family circle was too large, the head of the family would each month ration out strictly proportionate quantities of uncooked food to the individual families who then prepared them. These communities were bound together by close ties of kinship, mutual assistance and equality, and a patriarch would implore his sons on his deathbed to remain faithful to the family.^(8) These social relations were already seriously impaired by the rule of the Turks, established in Algeria in the sixteenth century. Yet the Turkish exchequer had by no means confiscated all the land. That is a legend invented by the French at a much later date. Indeed, only a European mind is capable of such a flight of fancy which is contrary to the entire economic foundation of Islam both in theory and practice. In truth, the facts were quite different. The Turks did not touch the communal fields of the village communities. They merely confiscated a great part of uncultivated land from the clans and converted it into crown land under Turkish local administrators (Bejiliks). The state worked these lands in part with native labour, and in part they were leased out on rent or against payment in kind. Further the Turks took advantage of every revolt of the subjected families and of every disturbance in the country to add to their possessions by large-scale confiscation of land, either for military establishments or for public auction, when most of it went to Turkish or other usurers. To escape from the burden of taxation and confiscation, many peasants placed themselves under the protection of the Church, just as they had done in medieval Germany. Hence considerable areas became Church property. All these changes finally resulted in the following distribution of Algerian land at the time of the French conquest: crown lands occupied nearly 3,750,000 acres, and a further 7,500,000 acres of uncultivated land as common property of All the Faithful (Bled-el-Islam). 7,500,000 acres had been privately owned by the Berbers since Roman times, and under Turkish rule a further 3,750,000 acres had come into private ownership, a mere 12,500,000 acres remaining communal property of individual Arab clans. In the Sahara, some of the 7,500,000 acres fertile land near the Sahara Oases was communally owned by the clans and some belonged to private owners. The remaining 57,500,000,000 acres were mainly waste land. With their conquest of Algeria, the French made a great ado about their work of civilisation, since the country, having shaken off the Turkish yoke at the beginning of the eighteenth century, was harbouring the pirates who infested the Mediterranean and trafficked in Christian slaves. Spain and the North American Union in particular, themselves at that time slave traders on no mean scale, declared relentless war on this Moslem iniquity. France, in the very throes of the Great Revolution, proclaimed a crusade against Algerian anarchy. Her subjection of that country was carried through under the slogans of combating slavery' and instituting orderly and civilised conditions'. Yet practice was soon to show what was at the bottom of it all. It is common knowledge that in the forty years following the subjection of Algeria, no European state suffered so many changes in its political system as France: the restoration of the monarchy was followed by the July Revolution and the reign of the 'Citizen King', and this was succeeded by the February Revolution, the Second Republic, the Second Empire, and finally, after the disaster of 1870, by the Third Republic. In turn, the aristocracy, high finance, petty bourgeoisie and the large middle classes in general gained political ascendancy. Yet French policy in Algeria remained undeflected by this succession of events; it pursued a single aim from beginning to end; at the fringe of the African desert, it demonstrated plainly that all the political revolutions in nineteenth-century France centred in a single basic interest: the rule of a capitalist bourgeoisie and its institutions of ownership. 'The bill submitted for your consideration', said Deputy Humbert on June 30, 1873, in the Session of the National Assembly as spokesman for the Commission for Regulating Agrarian Conditions in Algeria, is but the crowning touch to an edifice well-founded on a whole series of ordinances, edicts, laws and decrees of the Senate which together and severally have as the same object: the establishment of private property among the Arabs.' In spite of the ups and downs of internal French Politics, French colonial policy persevered for fifty years in its systematic and deliberate efforts to destroy and disrupt communal property. It served two distinct purposes: The break-up of communal property was primarily intended to smash the social power of the Arab family associations and to quell their stubborn resistance against the French yoke, in the course of which there were innumerable risings so that, in spite of France's military superiority, the country was in a continual state of war.^(9) Secondly, communal property had to be disrupted in order to gain the economic assets of the conquered country; the Arabs, that is to say, had to be deprived of the land they had owned for a thousand years, so that French capitalists could get it. Once again the fiction we know so well, that under Moslem law all land belongs to the ruler, was brought into play. Just as the English had done in British India, so Louis Philippe's governors in Algeria declared the existence of communal property owned by the clan to be impossible'. This fiction served as an excuse to claim for the state most of the uncultivated areas, and especially the commons, woods and meadows, and to use them for purposes of colonisation. A complete system of settlement developed, the so-called cantonments which settled French colonists on the clan land and herded the tribes into a small area. Under the decrees of 1830, 1831, 1840, 1844, 1845 and 1846 these thefts of Arab family land were legalised. Yet this system of settlement did not actually further colonisation; it only bred wild speculation and usury. In most instances the Arabs managed to buy back the land that had been taken from them, although they were thus incurring heavy debts. French methods of oppressive taxation had the same tendency, in particular the law of June 16, 1851, proclaiming all forests to be state property, which robbed the natives of 6,000,000 acres of pasture and brushwood, and took away the prime essential for animal husbandry. This spate of laws, ordinances and regulations wrought havoc with the ownership of land in the country. Under the prevailing condition of feverish speculation in land, many natives sold their estates to the French in the hope of ultimately recovering them. Quite often they sold the same plot to two or three buyers at a time, and what is more, it was quite often inalienable family land and did not even belong to them. A company of speculators from Rouen, e.g., believed that they had bought 50,000 acres, but in fact they had only acquired a disputed title to 3,425 acres. There followed an infinite number of lawsuits in which the French courts supported on principle all partitions and claims of the buyers. In these uncertain conditions, speculation, usury and anarchy were rife. But although the introduction of French colonists in large numbers among the Arab population had aimed at securing support for the French government, this scheme failed miserably. Thus, under the Second Empire, French policy tried another tack. The government, with its European lack of vision, had stubbornly denied the existence of communal property for thirty years, but it had learned better at last. By a single stroke of the pen, joint family property was officially recognised and condemned to be broken up. This is the double significance of the decree of the Senate dated April 22, 1864. General Allard declared in the Senate: "The government does not lose sight of the fact that the general aim of its policy is to weaken the influence of the tribal chieftains and to dissolve the family associations. By this means, it will sweep away the last remnants of feudalism [sic.'] defended by the opponents of the government bill... The surest method of accelerating the process of dissolving the family associations will be to institute private property and to settle European colonists among the Arab families.'^(10) The law of 1863 created special Commissions, for cutting up the landed estates, consisting of the Chairman, either a Brigadier-General or Colonel, one /sous-prefet/, one representative of the Arab military authorities and an official bailiff: These natural experts on African economics and social conditions were faced with the threefold task, first of determining the precise boundaries of the great family estates, secondly to distribute, the "estates" of each clan among its various branches, and finally to break up this family land into separate private allotments. This expedition of the Brigadiers into the interior of Africa duly took place. The Commissions proceeded to their destinations. They were to combine the office of judge in all land disputes with that of surveyor and land distributor, the final decision resting with the Governor-General of Algeria. Ten years' valiant efforts by the Commissions yielded the following result: between '1863 and 1873, of 700 hereditary estates, 400 were shared out among the branches of each clan, and the foundations far future inequalities, between great landed estates and small allotments were thus laid. One family, in fact, might receive between 25 and i o acres, while another might get as much as 250 or even 450 acres, depending on the size of the estate and the number of collaterals, within the clan. Partition, however, stopped at that point. Arab customs presented unsurmountable difficulties to a further division of family land. In spite of Colonels and Brigadiers, French policy had again failed in its object to create private property for transfer to the French. But the Third Republic, an undisguised regime of the bourgeoisie, had the courage and the cynicism to go straight-for its goal and to attack the problem from the other end, disdaining the preliminaries of the Second Empire. In 1873, the National Assembly worked out a law with the avowed intention immediately to split up the entire estates of all the 700 Arab clans, and forcibly to institute private property in the shortest possible time. Desperate conditions in the colony were the pretext for this measure. It had taken the great Indian famine of 1866 to awaken the British public to the marvellous exploits of British colonial policy and to call for a parliamentary investigation; and similarly, Europe was alarmed at the end of the sixties by the crying needs of Algeria where more than forty years of French rule culminated in wide-spread famine and a disastrous mortality rate among the Arabs. A commission of inquiry was set up to recommend new legislation with which to bless the Arabs: it was unanimously resolved that there was only one lifebuoy for them-the institution of private property; that alone could save the Arab from destitution, since he would then always be able to sell or mortgage his land. It was decided therefore, that the only means of alleviating the distress of the Arabs, deeply involved in debts as they were because of the French land robberies and oppressive taxation, was to deliver them completely into the hands of the usurers. This farce was expounded in all seriousness before the National Assembly and was accepted with equal gravity by that worthy body. The "victors" of the Paris Commune flaunted their brazenness. In the National Assembly, two arguments in particular served to support the new law: those in favour of the bill emphasised over and over again that the Arabs themselves urgently desired the introduction of private property. And so they did, or rather the Algerian land speculators and usurers did, since they were vitally interested in "liberating" their victims from the protection of the family ties. As long as Moslem law prevailed in Algeria, hereditary clan and family lands were inalienable, which laid insuperable difficulties in the way of anyone who wished to mortgage his land. The law of 1863 had merely made a breach in these obstacles, and the issue now at stake was their complete abolition so as to give a free hand to the usurers. The second argument was scientific', part of the same intellectual equipment from which that worthy, James Mill, had drawn for his abstruse conclusions regarding Indian relations of ownership: English classical economics. Thoroughly versed in their masters' teachings, the disciples of Smith and Ricardo impressively declaimed that private property is indispensable for the prevention of famines in Algeria, for more intensive and better cultivation of the land, since obviously no one would be prepared to invest capital or intensive labour in a piece of land which does not belong to him and whose produce is not his own to enjoy. But the facts spoke a different language. They proved that the French speculators employed the private property they had created in Algeria for anything but the more intensive and improved cultivation of the soil. In 1873, 1,000,000 acres were French property. But the capitalist companies, the Algerian and Setif Company which owned 300,000 acres, did not cultivate the land at all but leased it to the natives who tilled it in the traditional manner, nor were 25 per cent of the other French owners engaged in agriculture. It was simply impossible to conjure up capitalist investments and intensive agriculture overnight, just as capitalist conditions in general could not be created out of nothing. They existed only in the imagination of profit-seeking French speculators, and in the benighted doctrinaire visions of their scientific economists. The essential point, shorn of all pretexts and flourishes which seem to justify the law of 1873, was simply the desire to deprive the Arabs of their land, their livelihood. And although these arguments had worn threadbare and were evidently insincere, this law which was to put paid to the Algerian population and their material prosperity, was passed unanimously on July 26, 1873. But even this master-stroke soon proved a failure. The policy of the Third Republic miscarried because of the difficulties in substituting at one stroke bourgeois private property for the ancient clan communism,just as the policy of the Second empire had come to grief over the same issue. In 1890, when the law of July 26, 1873, supplemented by a second law on April 28, 1887, had been in force for seventeen years,, 14,000,000 francs had been spent on dealing with 40,000,000 acres. It was estimated that the process would not be completed before 1950 and would require a further 60,000,000 francs. And still abolition of clan communism, the ultimate purpose, had not been accomplished. What had really been attained was all too evident: reckless speculation in land, thriving usury and the economic ruin of the natives. Since it had been impossible to institute private property by force, a new experiment was undertaken. The laws of 1873 and 1887 had been condemned by a commission appointed for their revision by the Algerian government in 1890. It was another seven years before the legislators on the Seine made the effort to consider reforms for the ruined country. The new decree of the Senate refrained in principle from instituting private property by compulsion or administrative measures. The laws of February 2, 1897, and the edict of the Governor-General of Algeria (March 3, 1898) both provided chiefly for the introduction of private property following a voluntary application by the prospective purchaser or owner.^(11) But there were clauses to permit a single owner, without the consent of the others, to claim private property; further, such a "voluntary" application can be extorted at any convenient moment if the owner is in debt and the usurer exerts pressure. And so the new law left the doors wide open for French and native capitalists further to disrupt and exploit the hereditary and clan lands. Of recent years, this mutilation of Algeria which had been going on for eight decades meets with even less opposition, since the Arabs, surrounded as they are by French capital following the subjection of Tunisia (1881) and the recent conquest of Morocco, have been rendered more and more helpless. The latest result of the French regime in Algeria is an Arab exodus into Turkey.^(12) ------------------------------------------------------------------------ ^(1) Mill, in his History of British India, substantiates the thesis that under primitive conditions the land belongs always and everywhere to the sovereign, on evidence collected at random and quite indiscriminately from the most varied sources (Mungo Park, Herodotu, Volney, Acosta, Gardilasso de in Vega, Abbe Grosier, Barrow, Diodorus, Strabo and others). Applying this thesis to. India, he goes-on to say: 'From these facts only one conclusion can be drawn, that the property of the soil resided in the sovereign; or if it did not reside in him, it will be impossible to show to whom it belonged' (James Mill, History of British India (4th edition, 'S40), vol 1, p. 3I1). Mill's editor, H. H. Wilson who, as Professor of Sanskrit at Oxford University, was thoroughly versed - in the legal relations of Ancient India, gives an interesting commentary to this classical deduction. Already in his preface he characterises the author as a partisan who has juggled with the whole history of British India in order to justify the theories of Mr. Benthani and who, with this end, has used the most dubious means for his portrait of the Hindus which in no way resembles the original and almost outrages humanity. He appends the following footnote to our quotation: 'The greater part of the text and of the notes here is wholly irrelevant. The illustrations drawn from the Mahometan practice, supposing them to be correct, have nothing to do with the laws and rights of the Hindus. They are not, however, even accurate and Mr. Mill's guides have misled him.' Wilson then contests outright the theory of the sovereign's right of ownership in land, especially with reference to India. (Ibid., p. 305, footnote.) Henry Maine, too, is of the opinion that the British attempted to derive their claim to Indian land from the Mahometans in the first place, and he recognises this claim to be completely unjustified. 'The assumption which the English first made was one which they inherited from their Mahornetan predecessors. It was that all the soil belonged in absolute property to the sovereign,-and that all private property in land existed by his sufferance. The Mahometan theory and the corresponding Mahometan practice had put out of sight the ancient view of the sovereign's rights which, though it assigned to him a far larger share of the produce of the land than any Western ruler has ever claimed, yet in nowise denied the existence of private property in land' (Village Communities in the East and West (5th edition, vol. 2, 1890), p. 104). Maxim Kovalevshi, on the other hand, has proved thoroughly that this alleged 'Mahometan theory and practice' is an exclusively British legend. (Cf his excellent study, written in Russian, On the Causes, the Development and the Consequences of the Disintegration of Communal Ownership of Land (Moscow, 1879), part i.) Incidentally, British experts and their French colleagues at the time of writing maintain an analogous legend about China, for example, asserting that all the land there had been the Emperor's property. (Cf the refutation of this legend by Dr. 0. Franke, Die llechtsverhaltnisse am Gruna'eigentnm in China, 1903.) ^(2) "The partitions of inheritances and execution for debt levied on land are destroying the communities-this is the formula heard nowadays everywhere in India' (Henry Maine, op cit., p sig). ^(3) This view of British colonial policy, expounded e.g by Lord Roberts of Kandahar (for many years a representative of British power in India) is typical. He can give no other explanation for the 'Sepoy Mutiny than mere !misunderstandings' of the paternal intentions of the British rulers.'.. . the alleged unfairness of what was known in India as the land settlement, under which system the right and title of each landholder to his property was examined, and the amount of revenue to be paid by him to the paramount -Power, as owner of the soil, was regulated... as peace and order were established, the system of land revenue, which had been enforced in an extremely oppressive and corrupt manner under successive Native Rulers and dynasties, had to be investigated and revised. With this object in view, surveys were made, and inquiries instituted into the rights of ownership and occupancy, the result being that in many cases it was found that families of position and influence had either appropriated the property of their humbler neighbours, or evaded an assessment proportionate to the value of their estates. Although these inquiries were carried out: with the best intentions, they were extremely distasteful to the higher classes, while they failed to conciliate the masses. The ruling families deeply resented our endeavours to introduce an equitable determination of rights and assessment of land revenue .... On the other hand, although the agricultural population greatly benefited by our rule, they could not realise the benevolent intentions of a Government which tried to elevate their position and improve their prospects' (Forty One Tears in India, London, 1905, p. 233). ^(4) In his Maxims on Government (translated from the Persian into English in 1783), Timur says: 'And I commanded that they should build places of worship, and monasteries in every city; and that they should erect structures for the reception of travellers on the high roads, and that they should make bridges across the rivers. 'And I commanded that the ruined bridges should be repaired; and that bridges should be constructed over the rivulets, and over the rivers; and that on the roads, at the distance of one stage from each other, Kauruwansarai should be erected; and that guards and watchmen should be stationed on the road, and that in every Kauruwansarai people should be appointed to reside 'And I ordained, whoever undertook the cultivation of waste lands, or built an aqueduct, or made a canal, or planted a grove, or restored to culture a deserted district, that in the first year nothing should be taken from him, and that in the second year, whatever the subject voluntarily offered should be received, and that in the third year, duties should be collected according to the regulation' (James Mill, op cit., Vol. 2, pp. 498). ^(5) Count Warren, .De l'Etat moral de la population indiglne. Quoted by Kovalevsk1, op cit., p. 164. ^(6) Historical and Descriptive Account of British India from the most remote period to the conclusion of the Afghan war by Hugh Murray, James Wilson, Greville, Professor Jameson, William Wallace and Captain Dalrymple (Edinburgh, 4th edition, 1843), Vol. 2, p. 427. Quoted by Kovalevsk1, op cit. ^(7) Victor v. Leyden, Agrarverfassung und Grundsteuer in Britisch Ostindien. Jahrb f. Ges., Verw u. Velksw., vol xxxv1, no. 4, p. 1855. ^(8) 'When dying, the father of the family neatly always advise, his children to litre in unity, according to the example of their elders. This is his last exhortation, his dearest wish' (A. Hanotaux et A. Letournaux, La Jfabyiie sties Gsjlturaeslfa4yies, Vol. 2, 1873, 'Droit Civil', pp. 468-73). The authors, by the way, appraised this impressive description of communism in the clan with this peculiar sentence: 'Within the industrious fold of the family association, all are united in a common purpose, all work for the general interest-but no one gives up his freedom or renounces his hereditary rights; In no other nation does the organisation approach so closely to equality, being yet so far removed from communism.' ^(9) 'We must lose no time in dissolving the family associations, since they are the lever of all opposition against our rule' (Deputy Didier in the National Assembly of 1851). ^(10) Quoted by Kovalevski, op cit., p. 217. Since the Great Revolution, of course, it had become the fashion in France to dub all opposition to the government an open or covert defence of feudalism. ^(11) G. Anton, Neuere Agrarpolitik in Algerien und Tunesien. Jahrb f. Gesetzebung, Verwaltung end Volkswirtsclzaft (1900), pp. 1341 if. ^(12) On June 20, 1912, M. Albin Rozet, on behalf of the Commission for the Reform of the 'Indigenat' (Administrative Justice) in Algeria, stated in his speech to the French Chamber of Deputies that thousands of Algerians were migrating from the Setif district, and that 1,200 natives had emigrated from Tlemcen during the last year, their destination being Syria. One immigrant wrote from his new home: 'I have now settled in Damascus and am perfectly happy. There are many Algerians here in Syria who, like me, have emigrated. The government has given us land and facilities to cultivate it.' The Algerian government combats this exodus-by denying passports to prospective emigrants. (Cf. 30urnal Officiel, June 21, 1952, pp. 1594 if.) ------------------------------------------------------------------------ The Accumulation of Capital From jeebesh at sarai.net Sat Jan 29 19:01:05 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Sat, 29 Jan 2005 19:01:05 +0530 Subject: [Commons-Law] THE STRUGGLE AGAINST PEASANT ECONOMY Message-ID: <41FB9019.4040409@sarai.net> The Accumulation of Capital Rosa Luxemburg Chapter 29: THE STRUGGLE AGAINST PEASANT ECONOMY ------------------------------------------------------------------------ An important final phase in the campaign against natural economy is to separate industry from agriculture, to eradicate rural industries altogether from peasant economy. Handicraft in its historical beginnings was a subsidiary occupation, a mere appendage to agriculture in civilised and settled societies. In medieval Europe it became gradually independent of the corvee farm and agriculture, it developed into specialised occupations, i.e production of commodities by urban guilds. In industrial districts, production had progressed from home craft by way of primitive manufacture to the capitalist factory of the staple industries, but in the rural areas, under peasant economy, home crafts persisted as an intrinsic part of agriculture. Every hour that could be spared from cultivating the soil was devoted to handicrafts which, as an auxiliary domestic industry, played an important part in providing for personal needs.^(1) It is a recurrent phenomenon in the development of capitalist production that one branch of industry after the other is singled out, isolated from agriculture and concentrated in factories for mass production. The textile industry provides the textbook example, but the same thing has happened, though less obviously, in the case of other rural industries. Capital must get the peasants to buy its commodities and will therefore begin by restricting peasant economy to a single sphere-that of agriculture - which will not immediately and, under European conditions of ownership, only with great, difficulty submit to capitalist domination.^(2) To all outward appearance, this process is quite peaceful. It is scarcely noticeable Sand seemingly caused by purely economic factors. There can be no doubt that mass production in the factories is technically superior to primitive peasant industry, owing to a higher degree of specialisation, scientific analysis and management of the productive process, improved machinery, and access to international resources of raw materials. In reality, however, the process of separating agriculture and industry is determined by factors such as oppressive taxation, war, or squandering and monopolisation of the nation's land, and thus belongs to the spheres of political power and criminal law no, less than with economics.,.. Nowhere has this process been brought to such perfection as n the United States. In the wake' of the railways, financed by European and in particular British capital, the American farmer crossed the Union from East to 'West and in his progress over vast areas killed off the Red Indians with fire-arms and bloodhounds, liquor and venereal disease, pushing the survivors to the West, in order to appropriate the land they' had vacated', to clear it and bring it under the plough. The American farmer, the "backwoodsman" of the good, old times before the War of Secession, was very different indeed from his modern counterpart. There was hardly anything he could not do, and he led a practically self-sufficient life on his isolated farm. In the beginning of the nineties, one of the leaders of the Farmers' Alliance, Senator Peffer, wrote as follows: 'The American farmer of to-day is altogether a different sort of man from his, ancestor of fifty or a hundred years ago. A great many men and women now living remember when farmers were largely manufacturers; that is to say, they made a great many implements for their own use. Every farmer had an assortment of tools with which he made wooden implements, as, forks and rakes, handles for his hoes and ploughs, spokes for his wagon, and various other implements made wholly out of wood. Then the farmer produced flax and hemp and wool and cotton. These fibres were prepared upon the farm; they were spun into yarn, woven into cloth, made into garments, and worn at home. Every farm had upon it a little shop for wood and iron work, and in the dwelling were cards and looms; carpets were woven, bed-clothing of different sorts was prepared; upon every farm geese were kept, their feathers used for supplying the home demand with beds and pillows, the surplus being disposed of at the nearest market town. During the winter season wheat and flour and corn meal were carried in large wagons drawn by teams of six to eight horses a hundred or two hundred miles to market, and traded for farm supplies for the next year groceries and dry goods. Besides this, mechanics were scattered among the farmers. The farm wagon was in process of building a year or two; the material was found near the shop; the character of the timber to be used was stated in the contract; it had to be procured in a certain season and kept in the drying process a length of time specified, so that when the material was brought together in proper form and the wagon made, both parties to the contract knew where every stick of it came from, and how long it had been in seasoning. During winter time the neighbourhood carpenter prepared sashes and blinds and doors and moulding and cornices for the next season's building. When the frosts of autumn came the shoemaker repaired to the dwellings of the farmers and there, in a corner set apart to him, he made up shoes for the family during the winter. All these things were done among the farmers, and a large part of the expense was paid with products of the farm. When winter approached, the butchering season was at hand; meat for family use during the next year was prepared and preserved in the smoke house. The orchards supplied fruit for cider, for apple butter, and for preserves of different kinds, amply sufficient to supply the wants of the family during the year, with some to spare. Wheat was threshed, a little at a time, just enough to supply the needs of the family for ready money, and not enough to make it necessary to waste one stalk of straw. Everything was saved and put to use. One of the results of that sort of economy was that comparatively a very small amount of money was required to conduct the business of farming. A hundred dollars average probably was as much as the largest farmers of that day needed in the way of cash to meet the demands of their farm work, paying for hired help, repairs of tools, and all other incidental expenses."^(3) This Arcadian life was to come to a sudden end after the War of Secession. The war had burdened the Union with an enormous National Debt, amounting to £1,200,000, and in P consequence the taxes were considerably increased. On the other hand, a feverish development of modern traffic and industry, machine-building in particular, was encouraged by the imposition of higher protective tariffs. The railway companies were endowed with public lands on an imposing scale, in order to promote railroad construction and farm-settlements: in 1867 alone, they were given more than 192,500,000 acres, and so the permanent way grew at an unprecedented rate: In 1860 it amounted to less than 31,000 miles, in 1870 it had, grown to more than 53,000 miles and in 1880 to more than 93,000 miles. (During the same period-1870-1880 — the permanent way in Europe had grown from 80,000 miles to 100,000 miles.) The railways and speculations in land made for mass emigration from Europe to the United States, and more than 4 million people immigrated in the twenty-three years from 1869 to 1892. In this way, the Union gradually became emancipated from European, and in particular-from British, industry; factories we set up in the States and home industries developed for the production of textiles, iron, steel and machinery. The process of revolutionary transformation was most rapid in agriculture. The emancipation of the slaves had compelled the Southern planters to introduce the steam plough shortly after the Civil War, and new farms had sprung up in the West in the wake of the railways, which from the very beginning employed the most modern machinery and technique. "The improvements are rapidly revolutionising the agriculture of the 'West, and reducing to the lowest minimum ever attained, the proportion of manual labour employed in its operations .... Coincident with this application of mechanics to agriculture, systematic and enlarged business aptitudes have also sought alliance with this noble art. Farms of thousands of aces have been managed with greater skill, a more economical adaptation of means to ends, and with a larger margin of real profit than many others of 80 acres."^(4) During this time, direct and indirect taxation had increased enormously. On June 30, 1864, during the Civil War, a new finance bill was passed which is the basis of the present system of taxation, and which raised taxes on consumption and income to a staggering degree. This heavy war levy served as a pretext for a real orgy of protective tariffs in order to offset the tax on home production by customs duties.^(5) Messrs. Morrill, Stevens and the other gentlemen who advanced the war as a lever for enforcing their protectionist programme, initiated the practice of wielding the implement of a customs policy quite openly and cynically to further private profiteering interests of all descriptions. Any home producer who appeared before the legislative assembly with a request for any kind of special tariff to fill his own pocket saw his demands readily granted, and the tariff rates were made as high as any interested party might wish. "The war', writes the American Taussig, had in many ways a bracing and ennobling influence on our national life; but its immediate effect on business affairs, and on all legislation affecting moneyed interests, was demoralising. The line between public duty and private interests was often lost sight of by legislators. Great fortunes were made by changes in legislation urged and brought about by those who were benefited by them, and the country has seen with sorrow that the honour and honesty of public men did not remain undefiled. ' This customs bill which completely revolutionised the country' economic life, and remained iii force unchanged for twenty years, was literally pushed through Congress in three days, .and through the Senate in two, without criticism, without debate, without any opposition whatever.^(6) Down to the present day it forms the basis of U.S. customs legislation. This shift in U.S. fiscal policy ushered in an era of the most brazen parliamentary log-rolling and of undisguised and unrestrained corruption of elections, of the legislature and the press to satisfy the greed of Big Business. 'Enrichisse-vous' became the catchword of public life after the noble war' to liberate mankind from the blot of.slavery'. On the stock exchange, the Yankee negro-liberation sought his fortunes in orgies of speculation; in Congress, he endowed himself with public lands, enriched himself by customs and taxes, by monopolies, fraudulent share and theft of public funds. Industry prospered. Gone were the times when the small or medium farmer required hardly any money, when he could thresh and turn into cash his wheat reserves as the need arose. Now he was chronically in need of money, a lot of money, to pay his taxes. Soon he was forced to sell all his produce and to buy his requirements from the manufacturers in the form of ready-made goods. As Peffer puts it: "Coming from that time to the present, we find that everything nearly has been changed. All over the West particularly the farmer threshes his wheat all at one time, he disposes of it all at one time, and in a great many instances the straw is wasted. He sells his hogs, and buys bacon and pork; he sells his cattle, and buys fresh beef and canned beef or, domed beef; as the case may be; he sells his fruit, and buys it back in cans. If he raises flax at all, instead of putting it into, yarn and making gowns for his children, as he did fifty years or more ago, he threshes his flax, sells the seed, and burns the straw. Not more than one farmer in fifty now keeps sheep at all; he relies upon the large sheep farmer for the wool, which is put into cloth or clothing ready for his use. Instead of hating clothing made up on the farm in his own house or by a neighbour woman or country tailor a mile away, he either purchases his clothing ready made at the nearest town, or he buys the cloth and has a city tailor make it up for him. Instead of making implements which he uses about the farm-forks, rakes, etc.he goes to town to purchase even a handle for his axe or his mallet; he purchases twine and rope and all sorts of needed material made of fibres; he buys his cloth and his clothing; he buys his canned fruit and preserved fruit; he buys hams and shoulders and mess pork and mess beef; indeed, he buys nearly everything now that he produced at one time himself, and these things all cost money. Besides all this, and what seems stranger than anything else, whereas in the earlier time the American home was a free home, unencumbered, not one case in a thousand where a home was mortgaged to secure the payment of borrowed money, and whereas but a small amount of money was then needed for actual use in conducting the business of farming, there was always enough of it among the farmers to supply the demand. Now, when at least ten times as much is needed, there is little or none to be obtained, nearly half the farms are mortgaged for as much as they are worth, and interest rates are exorbitant. As to the cause of such wonderful changes ... the manufacturer came with his woollen mill, his carding mill, his broom factory, his rope factory, his wooden-ware factory, his cotton factory, his pork-packing establishment, his canning factory and fruit preserving houses; the little shop on the farm has given place to the large shop in town; the wagon-maker's shop in the neighbourhood has given way to the large establishment in the city where a hundred or two hundred wagons are made in a week; the shoemaker's shop has given way to large establishments in the cities where most of the work is done by machines." Finally, the agricultural labour of the farmer himself has become machine work: 'He ploughs and sows and reaps with machines. A machine cuts his wheat and puts it in a sheaf; and steam drives his threshers. He may read the morning paper while he ploughs and sit under an awning while he reaps.' Sering estimated in the middle eighties that the necessary cash for a very modest beginning' of the smallest farm in the North West is £240 to £280.^(7) This revolution of American agriculture after the 'Great War' was not the end. It was only the beginning of the whirlpool in which the farmer was caught. His history brings us automatically to the second phase of the development of capitalist accumulation of which it is an excellent illustration.Natural economy, the production for personal needs and the dose connection between industry and agriculture must be ousted and a simple commodity economy substituted for them. Capitalism needs the medium of commodity production for its development, as a market for its surplus value. But as soon as simple commodity production has superseded natural economy, capital must turn against it. No sooner has capital called it to life, than the two must compete for means of production, labour power, and markets. The first aim of capitalism is to isolate the produce', to sever the community ties which protect him, and the next task is to take the means of production away from the small manufacturer. In the American Union, as we have seen, the 'Great War' inaugurated an era of large-scale seizure of public lands by monopolist capitalist companies and individual speculators. Feverish railroad building and ever more speculation in railway shares led to a mad gamble in land, where individual soldiers of fortune and companies netted immense fortunes and even entire counties. In addition a -veritable swarm- of agents lured the vast flow of emigrants from Europe to the U.S.A. by blatant and unscrupulous advertising, deceptions and pretences of every description. These immigrants first settled.in the Eastern States along the Atlantic seaboard, and, with the growth of industry in these states, agriculture was driven westward. The wheat centre' which had been near Columbus, Ohio, in 1850, in the course of the subsequent fifty years shifted to a position 99 riffles further North and 680 miles further West. Whereas in 1850 5I4 per cent of the total wheat crop had been supplied by the Eastern States, in 1880 they produced only 13.6 per cent, 7i7 per cent being supplied by the. Northern Central and 9 per cent by the Western States. In 1825, the Congress of the Union under Monroe had decided to transplant the Red Indians from the East to the West of the Mississippi. The redskins put up a desperate resistance; but all who survived the slaughter of forty Red Indian campaigns were swept away like so much rubbish and driven like cattle to the West to be folded in reservations like so many sheep. The Red Indian had been forced to make room for the farmer -and now the farmer in his turn was driven beyond the Mississippi to make way for capital. Following the railway tracks, the American farmer moved West and North-West into the land of promise which the great land speculators' agents had painted for him in glowing colours. Yet the most fertile and most favourably situated lands were retained by the companies who farmed them extensively on completely capitalistic lines. All around the farmer who had been exiled into the wilderness, a dangerous competitor and deadly enemy sprang up-the bonanza farms', the great capitalist agricultural concerns which neither the Old World nor the New had known before. Here surplus value was produced with the application of all the resources known to modern science and technology. "As the foremost representative of financial agriculture we may consider Oliver Dalrymple, whose name is to-day known on both sides of the Atlantic. Since '874 he has simultaneously managed a line of steamers on the Red River and six farms owned by a company of financiers and comprising some 75,000 acres. Each one is divided into departments of 2,000 acres, and every department is again subdivided into three sections of 667 acres which are run by foremen and gang leaders. Barracks to shelter o men and stable as many horses and mules, are built on each section, and similarly kitchens, machine sheds and workshops for blacksmiths and locksmiths. Each section is completely equipped with 20 pairs of horses, 8 double ploughs, 12 horse-drawn drill-ploughs, 12 steel-toothed harrows, 12 cutters and binders, 2 threshers and 16 wagons. Everything is done to ensure that the machines and the living labour (men, horses and mules) are in good condition and able to do the greatest possible amount of work. There is a telephone line connecting all sections and the central management. "The six farms of 75,000 acres are cultivated by an army of 600 workers, organised on military lines. During the harvest, the management hires another oo to 600 auxiliary workers, assigning them to the various sections. After the work is completed in the fall, the workers are dismissed with the exception of the foreman and ro men per section. In some farms in Dakota and Minnesota, horses and mules do not spend the winter at the place of work. As soon as the stubble has been ploughed in, they are driven in teams of a hundred or two hundred pairs 900 miles to the South, to return only the following spring. "Mechanics on horseback follow the ploughing, sowing and harvesting machines when they are at work. If anything goes wrong, they gallop to the machine in question, repair it and get it moving again without delay. The harvested corn is carried to the threshing machines which work day and night without interruption. They are stoked with bundles of straw fed into the stoke hold through pipes of sheet-iron:. The corn is threshed, winnowed,, weighed and filled into sacks by machinery, then it is put into railway trucks which run alongside the farm, and goes to Duluth or Buffalo. Every year, Dalrymple increases his land under seed by 5,800 acres. In 1880 it amounted to 25,000 acres."^(8) In the late seventies, there were already individual capitalists and companies who owned 35,000 — 45,000 acres of wheat land. Since' the time (if Lafargue's writing, extensive capitalist agriculture in America has made great strides in technique and the employment of machinery.^(9) The American farmer could hot successfully compete with such capitalist enterprises. At a time when the general revolution in the conditions of finance, production and transport compelled him to give up production for personal needs and to produce exclusively for the market, the great spreading of agriculture caused a heavy fall in the prices of agricultural products. And at the precise moment when farming became dependent on the market, the agricultural market of the Union was suddenly turned from a local one into a world market, and became a prey to the wild speculations of a few capitalist mammoth concerns. In 1879, a notable year for the history of agricultural conditions in Europe as well as in America, there began the mass export of wheat from the U.S.A. to Europe.^(10) Big Business was of course the only one to profit from this expanding market. The small farmer was crushed by the competition of an increasing number of extensive farms and became the prey of speculators who bought up his corn to exert pressure on the world market. Helpless in the face of the immense capitalist powers, the farmer got into debt-a phenomenon typical for a declining peasant economy. In 1890, Secretary Rusk of the U.S. Department of Agriculture sent out a circular letter with reference to the desperate position of the farmers, saying: "The burden of mortgages upon farms, homes, and land, is unquestionably discouraging in the extreme, and while in some cases no doubt this load may have been too readily assumed, still in the majority of cases the mortgage has been the result of necessity .... These mortgages... drawing high rates of interest... have to-day, in the face of continued depression of the prices-.of staple products, become very irksome, and in many cases threaten the farmer with loss of home and land. It is a question of grave difficulty to all those who seek to remedy the ills from which our farmers are suffering. At present prices the farmer finds that it takes more of his products to get a dollar wherewith to buy back the dollar which he borrowed than it did when he borrowed it. The interest accumulates, while the payment of the principal seems utterly hopeless, and the very depression which we are discussing makes the renewal of the mortgage most difficult."^(11) According to the census of May 29, 1891, 25 million farms were deep in debt; two-thirds of them were managed by the owners whose obligations amounted to nearly £440,000. "The situation is this: farmers are passing through the "valley and shadow of death"; farming as a business is profitless; values of farm products have fallen 50 per cent since the great war, and farm values have depreciated 25 to o per cent during the last ten years; farmers are overwhelmed with debts secured by mortgages on their homes, unable in many instances to pay even the interest as it falls due, and unable to renew the loans because securities are weakening by reason of the general depression; many farmers are losing their homes under this dreadful blight, and the mortgage mill still grinds. We are in the hands of a merciless power; the people's homes are, at stake.' Encumbered with debts and close to ruin, the farmer had no option but to supplement his earnings by working for a wage, or else to abandon his farm altogether. Provided it had not yet fallen into the clutches of his creditors like so many thousands of farms, he could shake from off his feet the dust of the land of promise' that had become an inferno for him. In the middle eighties, abandoned and decaying farms could be seen everywhere. In 1887, Sering wrote: "If the farmer cannot pay his debts to date, the interest he has to pay is increased to 12, 15 or even 20 per cent. He is pressed by the banker, the machine salesman and the grocer who rob him of the fruits of his hard work... He can either remain on the farm as a tenant or move further West, to try his fortunes elsewhere. Nowhere in North America have I found so many indebted, disappointed and depressed farmers as in the wheat regions of the North Western prairies. I have not spoken to a single farmer in Dakota who would not have been prepared to sell his farm." "The Commissioner of Agriculture of Vermont in 1889 reported a wide-spread desertion of farm-lands of that state. He wrote: ". . . there appears to be no doubt about there being in this state large tracts of tillable unoccupied lands, which can be bought at a price approximating the price of Western lands, situated near school and church, and not far from railroad facilities. The Commissioner has not visited all of the counties in the State where these lands are reported, but he has visited enough to satisfy him that, while much of the unoccupied and formerly cultivated land is now practically worthless for cultivation, yet very much of it can be made to yield a liberal reward to intelligent labour." The Commissioner of the State of New Hampshire issued a pamphlet in 1890, devoting 67 pages to the description of farms for sale at the lowest figures. He describes 1442 farms with tenantable buildings, abandoned only recently. The same has happened in other districts. Thousands of acres once raising corn and wheat are left unfilled and run to brush and wood. In order to resettle the deserted land, speculators engaged in advertising campaigns and attracted crowds of new immigrants -new victims who were to suffer their predecessors' fate even more speedily. A private letter says: 'In the neighbourhood of railroads and markets, there remains no common land. It is all in the hands of the speculators. A settler takes over vacant land and, counts for a farmer; but the, management: of his farm hardly assures his livelihood, and he cannot possibly compete with the big farmer. 'He tills as much of his land as the law compels him to do, but to make a comfortable living, he must look for,additional, sources of income outside agriculture In Oregon, for instance, I have met a settler who owned 160 acres for five years, but every summer, until the end of July, he worked twelve hours a day for a dollar a day at road-making. This man, of course, also counts as one of the five million farmers in the 1890 census. Again, in the County of Eldorado, I saw many farmers who cultivated their land only to feed their cattle and themselves. There would have been no profit in producing for the market, and theft chief income derives from gold-digging, the felling and, selling of timber, etc. These people are prosperous, but it is not agriculture which makes them so. Two years ago, we worked in Long Caeon, Eldorado County, living in a cabin on an allotment. The owner of this allotment came home only once a year for a couple of days, and worked the rest of the time on the railway in Sacramento. Some years ago) a small part of the allotment was cultivated, to comply with the law, but now it is left completely untilled. A few acres are fenced off with wire, and there is a log cabin and a shed. But during the last years all this stands empty; a neighbour has the key and he made us free of the hut. In the course of our journey, we saw' many deserted allotments, where attempts at-farming had been made. Three years ago I was offered a farm with dwelling house for a hundred dollars, but in a short time the unoccupied house collapsed under the snow. In Oregon, we saw many derelict farms with small dwelling houses and vegetable gardens. One we visited was beautifully made: a sturdy block house, fashioned by a master-builder, and some equipment; but the' farmer had abandoned it all. You were welcome to take it all without charge."^(12) Where could the ruined American farmer turn? He set out on a pilgrimage to follow the wheat centre and the railways. The former had shifted in the main to Canada, the Saskatchewan and the Mackenzie River where wheat can still thrive on the 62nd parallel. A number of American farmers followed - and after some time in Canada, they suffered the old fate.^(13) During recent years, Canada has entered the world market as a wheat-exporting country, but her agriculture is dominated to an even greater extent by big capital than elsewhere.^(14) In Canada, public lands were lavished upon private capitalist companies on an even more monstrous scale than in the United States. Under the Charter of the Canadian Pacific RaiL way Company with its grant of land, private capital perpetrated an unprecedented act of robbing the public. Not only that the company was guaranteed a twenty years' monopoly of railway building, not only that it got a building site of about 713 miles free of charge, not only that it got a 100 years' state guarantee of the 3 per cent interest on the share capital of £m. 20-to crown it all, the company was given the choice of 25 million acres out of the most fertile and favourably situated lands, not necessarily in the immediate vicinity of the permanent way, as a free gift. All future settlers on this vast area were thus at the mercy of railway capital from the very outset. The railway company, in its turn, immediately proceeded to sell off 5 million acres for ready cash to the North-West Land Company, an association, of British capitalists under the chairmanship of the Duke of Manchester. The second group of capitalists which was liberally endowed with public lands was the Hudson Bay Company, which was given a title to no less than one-twentieth of all the lands between Lake Winnipeg, the U.S. border, the Rocky Mountains, and Northern Saskatchewan, for renouncing their privileges in the North-West. Between them, these two capitalist groups had gained possession of five-ninths of all the land that could be settled. A considerable part of the other lands was assigned by the State to 26 capitalist colonising companies'. Thus the Canadian farmer was practically everywhere ensnared by capital and capitalist speculation. And still mass immigration continued-not only from Europe, but also from the United States! These are the characteristics of capitalist domination on an international scale. Having evicted the peasant, from his soil, it drives him from England to the East of the United States, and from there to the West, and on the ruins of the Red Indians' economy it transforms him back into a small; commodity producer. Then, when he is ruined once more, he is driven from the West to the North. With the railways in the van, and ruin in the rear-capital leads the way, its passage is marked with universal destruction. The great fall of prices in the nineties is again succeeded by higher prices for agricultural products, but this is of no more avail to the small American farmer than to the European peasant. Yet the numbers of farmers are constantly swelling. In the last decade of the nineteenth century they had grown froth 4,600,000 to 5,700,009, and the following ten years still saw an absolute increase. The aggregate value of farms had during the same period risen from £150,240,000 to £330,360,000.^(15) We might have expected the general increase in the price of farm produce to have helped the farmer to come into his own. But that is not so; we see that the growing numbers of tenant farmers outstrip the increase in the farming population as a whole. In 1880, the proportion of tenant farmers amounted to 25.5 per cent of the total number of farmers in the Union, in 1890 it was 28.4 per cent, in 1900 35.3 per cent, and in 1910 37.2 per cent. Though prices for farm produce were rising, the tenant farmer was more and more rapidly stepping into the shoes of the independent farmer. And although much more than one-third of all farmers in the Union are now tenant farmers, their social status in the United States is that of the agricultural labourer in Europe. Constantly fluctuating, they are indeed wage-slaves of capital; they work very hard to create wealth for capital, getting nothing in return but a miserable and precarious existence. In quite a different historical setting, in South Africa, the same process shows up even more clearly the peaceful methods' by which capital competes with the small commodity producer. In the Cape Colony and the Boer Republics, pure peasant economy prevailed until the sixties of the last century. For a long time the Boers had led the life of animal-tending nomads; they had killed off or driven out the Hottentots and Kaffirs with a will in order to deprive them of their most valuable pastures. In the eighteenth century they were given invaluable assistance by the plague, imported by ships of the East India Company, which frequently did away with entire Hottentot tribes whose lands then fell to the Dutch immigrants. When the Boers spread further East, they came in conflict with the Bantu tribes and initiated the long period of the terrible Kaffir wars. These god fearing Dutchmen regarded themselves as the Chosen People and took no small pride in their old-fashioned Puritan morals and their intimate knowledge of the Old Testament; yet, not content with robbing the natives of their land, they built their peasant economy like parasites on the backs of the Negroes, compelling them to do slave-labour for them and corrupting and enervating them deliberately and systematically. Liquor played such an important part in this process, that the prohibition of spirits in the Cape Colony could not be carried through by the English government because of Puritan opposition. There were no railways until 1859, and Boer economy in general and on the whole remained patriarchal and based on natural economy until the sixties. But their patriarchal attitude did not deter the Boers from extreme brutality and harshness. It is well known that Livingstone complained much more about the Boers than about the Kaffirs. The Boers considered the 4" Negroes an object, destined' by God and Nature to slave for them, and as such an indispensable foundation of their peasant economy. So much so that their answer to the abolition of slavery in the English colonies in 1836 was the 'Great Trek's although there the owners had been compensated with £3,000,000. By way of.the Orange River and Vaal, the Boers emigrated from the Gape Colony, and in, the process they drove the Matabele to the North, across the Lithpopo, setting them against' the Makalakas just as the American farmer had driven the Red Indian West before him under the impact of capitalist economy, so the Boer drove the Negro to the North. The 'Free Republics' between the Orange River and the Limpopo thus were created as a protest against the designs of the English bourgeoisie on the sacred right of slavery The tiny peasant republics were in constant guerilla, warfare against the Bantu Negroes And it was on the backs of the Negroes that the battle between the Boers and the English government,, which went on for decades, was fought. 'The Negro question, i.e the emancipation of the Negroes, ostensibly aimed at by the English bourgeoisie, served as a pretext for the conflict between England and the republics. In fact, peasant economy and great capitalist colonial policy were here competing for the Hottentots and Kaffirs, that is to say for their land and their labour power. Both competitors had precisely the same aim: to subject expel or destroy the coloured peoples, to appropriate their land and press them into service by the abolition of their social organisations. Only their methods of exploitation were fundamentally different. While the Boers stood for out-dated slavery on a petty scale, on which their patriarchal peasant economy was founded, the British bourgeoisie represented modern large-scale capitalist exploitation of the land and the natives. The Constitution of the Transvaal (South African) Republic declared with crude prejudice: 'The People shall not permit any equality of coloured persons with white inhabitants, neither in the Church nor in the State." ^(16) In the Orange Free State and in the Transvaal no Negro was allowed to own land, to travel without papers or to walk abroad after sunset. Bryce tells us of a case where a farmer, an Englishman as it happened in the 'Eastern Cape Colony had flogged his Kaflir slave to death. When he was acquitted in open court, his neighbours escorted him home to the strains of music. The white man frequently maltreated his free native labourers after they had done their work-to such an extent that they would take to flight, thus saving the master their wages. The British government employed precisely the opposite tactics. For a long time it appeared as protector of the natives; flattering the chieftains in particular, it supported their authority and tried to make them claim a right of disposal over their land. Wherever it was possible, it gave them ownership of tribal land, according to well-tried methods, although this flew in the face of tradition and of the actual social organisation of the Negroes. All tribes in fact held their land communally, and even the most cruel and despotic rulers such as the Matabele Chieftain Lobengula merely had the right as well as the duty to allot every family a piece of land which they could only retain so long as they cultivated it. The ultimate purpose of the British government was clear: long in advance it was preparing for land robbery on a grand scale, using the native chieftains themselves as tools. But in the beginning it was content with the "pacification" of the Negroes by extensive military actions. Up to 1879 were fought 9 bloody Kaffir wars to break the resistance of the Bantus. British capital revealed its real intentions only after two important events had taken place: the discovery of the Kimberley diamond fields in 1869-70, and the discovery of the gold mines in the Transvaal in 1882-5, which initiated a new epoch in the history of South Africa. Then the British South Africa Company, that is to say Cecil Rhodes, went into action. Public opinion in England rapidly swung over, and the greed for the treasures of South Africa urged the British government on to drastic measures. South Africa was suddenly flooded with immigrants who had hitherto only appeared in small numbers-immigration having been deflected to the United States. But with the discovery of the diamond and gold fields, the numbers of white people in the South African colonies grew by leaps and bounds: between 1885 and 1895, 100,000 British had immigrated into Witwatersrand alone. The modest peasant economy was forthwith pushed into the background-the mines, and thus the mining capital, coming to the fore. The policy of the British government veered round abruptly. Great Britain had recognised the Boer Republics by the Sand River Agreement and the Treaty of Bloemfontein in the fifties. Now her political might advanced upon the tiny republic from every side, occupying all neighbouring districts and cutting off all possibility of expansion. At the same time the Negroes, no longer protected favourites, were sacrificed. British capital was steadily forging ahead. In 1868, Britain took over the rule of Basutoland-only, of course, because the natives had repeatedly implored her to do so.^(17) In 1871, the Witwatersrand diamond fields, or West Griqualand, were seized from the Orange Free State and turned into a Crown Colony. In 1879, Zululand was subjected, later to become part of the Natal Colony; in 1885 followed the subjection of Bechuanaland, to be joined to the Cape Colony. In 1888 Britain took over Matabele and Mashonaland, and in 1889 the British South Africa Company was given a Charter for both these districts, again, of course, only to oblige the natives and at their request.^(18) Between 1884 and 1887, Britain annexed St. Lucia Bay and the entire East Coast as far as the Portuguese possessions. In 1894, she subjected Tongaland. With their last strength, the Matabele and Mashona fought one more desperate battle, but the Company, with Rhodes at the head, first liquidated the rising in blood and at once proceeded to the well tried measure for civilising and pacifying the natives: two large railways were built in the rebellious district. The Boer Republics were feeling increasingly uncomfortable in this sudden strangle hold, and their internal affairs as well were becoming completely disorganised. The overwhelming influx of immigrants and the rising tides of the frenzied new capitalist economy now threatened to burst the barriers of the small peasant states. There was indeed a blatant conflict between agricultural and political peasant economy on the one hand, and the demands and requirements of the accumulation of capital on the other. In all respects, the republics were quite unable to cope with these new problems. The constant danger from the Kaffirs, no doubt regarded favourably by the British, the unwieldy, primitive administration, the gradual corruption of the vellcsraad in which the great capitalists got their way by bribery, lack of a police force to keep the undisciplined crowds of adventurers in some semblance of order, the absence of labour legislation for regulating and securing the exploitation of the Negroes in the mines, lack of water supplies and transport to provide for the colony of 100,000 immigrants that had suddenly sprung up, high protective tariffs which increased the cost of labour for the capitalists, and high freights for coal-all these factors combined towards the sudden and stunning bankruptcy of the peasant republics. They tried, obstinately and unimaginatively, to defend themselves against the sudden eruption of capitalism which engulfed them, with an incredibly crude measure, such as only a stubborn and hide-bound peasant brain could have devised: they denied all civic rights to the uitlanders who outnumbered them by far and who stood for capital, power, and the trend of the time. In those critical times it was an ill-omened trick. The mismanagement of the peasant republics caused a considerable reduction of dividends, on no account to be put up with. Mining capital had come to the end of its tether. The British South Africa Company built railroads, put down the Kaffirs, organised revolts of the uitlanaers and finally provoked the Boer War. The bell had tolled for peasant economy. In the United States, the economic revolution had begun with a war, in South Africa war put the period to this chapter. Yet in both instances, the outcome was the same: capital triumphed over the small peasant economy which had in its turn come into being on the ruins of natural economy, represented by the natives' primitive organisations. The domination of capital was a foregone conclusion, and it was just as hopeless for the Boer Republics to resist as it had been for the American farmer. Capital officially took over the reins in the new South African Union which replaced the small peasant republics by a great modern state, as envisaged by Cecil Rhodes' imperialist programme., The new conflict between capital and labour had superseded the old one between British and Dutch. One million white exploiters of both nations sealed their touching fraternal alliance within the Union with the civil and political disfranchisement of five million coloured workers. Not only the Negroes of the Boer' Republics came away empty handed, but the natives f the Cape Colony, whom the British government had at one time granted political equality, were also deprived of some of their rights. And this noble work, culminating under the imperialist policy of the Conservatives in.open oppression, was actually to be finished by the Liberal Party itself, amid frenzied applause from the liberal cretins of Europe' who with sentimental pride took as proof of the still continuing creative vigour and greatness of English liberalism the fact that Britain had granted complete self-government aud freedom to a handful of whites in South Africa. The ruin of independent craftsmanship by capitalist competition, no less painful for being soft-pedalled, deserves by rights a chapter to itself. The most sinister part of such a chapter would be out-work under Capitalism;-but we need not dwell on these phenomena here. The general result of the struggle between capitalism and simple commodity production is this after, substituting commodity economy for natural economy, capital takes the place of simple commodity economy. Non-capitalist organisations provide a fertile soil for capitalism; more strictly: capital feeds on the ruins of such organisations, and, although this non-capitalist milieu is indispensable for accumulation, the latter proceeds, at the cost of this medium nevertheless, by eating it up. Historically, the accumulation of capital is a kind of metabolism between capitalist economy and those pre-capitalist methods of production without which it cannot go on and which, in this light, it corrodes and assimilates. Thus capital cannot accumulate without the aid of non-capitalist organisations, nor, on the other hand, can it tolerate their continued existence side by side with itself. Only the continuous and progressive disintegration of non-capitalist organisations makes accumulation of capital possible. The premises which are postulated in Marx's diagram of accumulation accordingly represent no more than the historical tendency of the movement of accumulation and its logical conclusion. The accumulative process endeavours everywhere to substitute simple commodity economy for natural economy. Its ultimate aim, that is to say, is to establish the exclusive and universal domination of capitalist production in all countries and for all branches of industry. Yet this argument does not lead anywhere. As soon as this final result is achieved-in theory, of course, because it can never actually happen-accumulation must come to a stop. The realisation and capitalisation of surplus value become impossible to accomplish. Just as soon as reality begins to correspond to Marx's diagram of enlarged reproduction, the end of accumulation is in sight, it has reached its limits, and capitalist production is in extremis. For capital, the standstill of accumulation means that the development of the productive forces is arrested, and the collapse of capitalism follows inevitably, as an objective historical necessity. This is the reason for the contradictory behaviour of capitalism in the final stage of its historical career: imperialism. Marx's diagram of enlarged reproduction thus does not conform to the conditions of an accumulation in actual progress. Progressive accumulation cannot be reduced to static interrelations and interdependence between the two great departments of social production (the departments of producer and consumer goods), as the diagram would have it. Accumulation is more than an internal relationship between the branches of capitalist economy; it is primarily a relationship between capital and a non-capitalist environment, where the two great departments of production sometimes perform the accumulative process on their own, independently of each other, but even then at every step the movements overlap and intersect. From this we get most complicated relations, divergences in the speed and direction of accumulation for the two departments, different relations with non-capitalist modes of production as regards both material elements and elements of value, which we cannot possibly lay down in rigid formula. Marx's diagram of accumulation is only the theoretical reflection of the precise moment when the domination of capital has reached its limits, and thus it is no less a fiction than his diagram of simple reproduction, which gives the theoretical formulation for the point of departure of capitalist accumulation. The precise definition of capitalist accumulation and its laws lies somewhere in between these two fictions. ------------------------------------------------------------------------ ^(1) Until recently, in China the domestic industries were widely practised even by the bourgeoisie and in such large and ancient towns as Ningpo with its 300,000 inhabitants. 'Only a generation ago, the family's shoes, hats, shirts, etc., were made by the women themselves. At that time, it was practically unheard-of for a young woman to buy from a merchant what she could have made with the labour of her own hands' (Dr. Nyok-ChingTsur, 'Forms of Industry in the Town of Ningpo' (Die gewerbliclzen Betriebsfornien der Stadt .Wingpo), Tuebingen, 1909, p. 51). ^(2) Admittedly, this relation is reversed in the last stages of the history of peasant economy when capitalist production has made its lull impact. Once the small peasants are ruined, the entire work of farming frequently devolves on the women, old people and children, while the men are made to work for their living for capitalist entrepreneurs in the domestic industries or at wage-slaves in the factories. A typical instance is the small peasant in Wuefltemberg. ^(3) W. A. Peffer The Farmer's Side. His Troubles and Their Remedy (New York, 189 1), Part i1, 'How We Got Here', chap 1, 'Changed Conditions of the Farmer', pp. 56-7. Cf also A. M. Simmons, The American Farmer (2nd edition, Chicago, 1906), pp. 74 ff. ^(4) Report of the U.S.A. Commissioner of Agriculture for the year 1867 (Washington, 1868). Quoted by Lafargue: Getreideban ned Getreidehandel in den Vereinigten Staaten in Die Xeue Zeit (1885), p. 344. This essay on grain cultivation and the grain trade in the U.S.A. was first published in a Russian periodical in 1883. ^(5) The three Revenue Acts of June 30, 1864, practically formed one measure, and that probably the greatest measure of taxation which the world has seen .... The Internal Revenue Act was arranged, as Mr. David A. Wells has said, on the principle of the Irishman at Donnybrook Fair: "whenever you see a head, hit it, whenever you see a commodity, tax it" (F. W. Taussig, The Tariff History of the United States (New YorkLondon, s888), pp. 163-4). Ibid., pp. 166-7. ^(6) The necessity of the, situation, the critical State of the country, the urgent need of revenue, may have justified this haste, which, it is safe to say, is unexampled in the history of civilised countries' (Tausig op cit., p 168). ^(7) Agricultural Competition in North America' (Die landwirtschaftliche Konkurrenz l'Iordamerilcai) Leipzig, 1887, p. 431. ^(8) Lafargue, o cit., p. 345. ^(9) The Thirteenth Annual Report of the Commissioner of Labour (Wash- ington, 1899) tables the advantages of machinery methods over hand methods so far achieved as follows: ^(10) Wheat exports from the Union to Europe: ^(11) Peffer, op cit., part 1, 'Where We Are?, chap i1, 'Progress of Agriculture', pp. 30-1. ^(12) Quoted by Nikolayon, op cit.,p. 224. ^(13) 49,199 people immigrated to Canada in 1902. In 1912, the number of immigrants was more than 400,000-138,000 of them British, and 134,000 American; According to a report from Montreal, the influx of American farmers continued into the spring of the present year [1912]. ^(14) Travelling in the West of Canada, I have visited only one farm of less than a thousand acres. According to the census of the Dominion of Canada, in 1881, when the census was taken, no more than 9,077 farmers occupied 2,384,337 acres of land between them; accordingly, the share of an individual (farmer) amounted to no less than 2,047 acres-in no state of the Union is the average anywhere near that' (Sering, op cit., p. 376). In the early eighties, farming on a large scale was admittedly not very widely spread in Canada. But already in 1887, Sering describes the 'Bell Farm', owned by a limited company, which comprised no fewer than 56,700 acres, and was obviously modelled on the pattern of the Dalrymple farm. In the eighties, Sering, who regarded the prospects of Canadian competition with some scepticism, put the fertile belt' of Western Canada at three-fifths of the entire acreage of Germany, and estimated that actually only 38,400,000 acres of this were arable land, and no more than 55,000,000 acres at best were prospective wheat land (Sering, op cit., pp. 337-8). The Manitoba Free Press in June 1912, worked out that in summer, 1952, 11,200,000 acres were sown with spring wheat in Canada, as against 59,200,000 acres under spring wheat in the United States. (Cf. Berliner Tagsblalt, Handelszeilung, No. 305, June 18, 1912.) ^(15) Ernst Schultze, Was Wirtschafisleben der Vereinigten Staaten', 3ahrb f. Geselzg., Verw it. Vollcswirtschafi 1912, no. 27, p. 1724 ^(16) Article 9 ^(17) Moshesh, the great Basuto leader, to whose courage and statesmanship the Basutos owed their very existence as a people, was still alive at the time, but constant war with the Boers of the Orange Free State had brought him and his followers to the last stage of distress. Two thousand Basuto warriors had been killed, cattle had been carried off, native homes had been broken up and crops destroyed. The tribe was reduced to the position of starving refugees, and nothing could save them but the protection of the British government which they had repeatedly implored' (C. P. Lucas, A Historical Geography of the British Colonies, part i1, vol iv (Geography of South and East Africa), Oxford, 2904, p. 39). ^(18) The Eastern section of the territory is Mashonaland where, with the permission of King Lobengula, who claimed it, the British South Africa Company first established themselves' (ibid., p. 72). ------------------------------------------------------------------------ The Accumulation of Capital From lawrence at altlawforum.org Mon Jan 31 11:46:40 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Mon, 31 Jan 2005 11:46:40 +0530 Subject: [Commons-Law] query about IP in translation In-Reply-To: <200501291800.59651.ravikant@sarai.net> Message-ID: Hi Ravikant Sec. 14 of the Copyright Act which defines what a copyright is, includes the right of translation, which means that translation is the exclusive right of the owner of the copyright, and if a work in which copyright subsists is translated without the permission of the copyright owner then it would be an infringement of the copyright owner's rights. However Sec. 32 also allows for a person to apply for a license to make a translation directly to the copyright board after seven year from the publication of the work. I am including the two sections for your perusal lawrence =========== 1[14.  Meaning of copyright- For the purposes of this Act, ³copyright² means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely,-   (a)      In the case of a literary, dramatic or musical work, not being a computer programme,-   (i)       To reproduce the work in any material form including the storing of it in any medium by electronic means;   (ii)      To issue copies of the work to the public not being copies already in circulation;   (iii)      To perform the work in public, or communicate it to the public;   (iv)     To make any cinematograph film or sound recording in respect of the work;   (v)      To make any translation of the work;   (vi)     To make any adaptation of the work;   (vii)     To do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi); Sec 32 of the Copyright Act deals with the question of trasnlation =========================== 32.      Licence to produce and publish translations-   (1)      Any person may apply to the Copyright Board for a licence to produce and publish a translation of a literary or dramatic work in any language 1[after a period of seven years from the first publication of the work].   1[(lA) Notwithstanding anything contained in sub-section (1), any person may apply to the Copyright Board for a licence to produce and publish a translation, in printed or analogous forms of reproduction, of a literary or dramatic work, other than an Indian work, in any language in general use in India after a period of three years from the first publication of such work, if such translation is required for the purposes of teaching, scholarship or research.   Provided that where such translation is in a language not in general use in any developed country, such application may be made after a period of one year from such publication.]   (2)      Every 2[application under this section] shall be made in such form as may be prescribed and shall state the proposed retail price of a copy of the translation of the work.   (3)      Every applicant for a licence under this section shall, along with his application, deposit with the Registrar of Copyrights such fee as may be prescribed.   (4)      Where an application is made to the Copyright Board under this section, it may, after holding such inquiry as may be prescribed, grant to the applicant a licence, not being an exclusive licence, to produce and publish a translation of the work in the language mentioned in 3[the application-   (i)       Subject to the condition that the applicant shall pay to the owner of the copyright in the work royalties in respect of copies of the translation of the work sold to the public, calculated at such rate as the Copyright Board may, in the circumstances of each case, determine in the prescribed manner; and   (ii)      Where such licence is granted on an application under sub-section (1A), subject also to the condition that the licence shall not extend to the export of copies of the translation of the work outside Indian and every copy of such translation shall contain a notice in the language of such translation that the copy is available for distribution only in India.   Provided that nothing in clause (ii) shall apply to the export by Government or any authority under the Government of copies of such translation in a language other than English, French or Spanish to any country if-   (1)      Such copies are sent to citizens of India residing outside India or to any association of such citizens outside India; or   (2)      Such copies are meant to be used for purposes of teaching, scholarship or research and not for any commercial purpose; and   (3)      In either case, the permission for such export has been given by the Government of that country.] 3[Provided further that no licence under this section] shall be granted, unless-   (a)      A translation of the work in the language mentioned in the application has not been published by the owner of the copyright in the work or any person authorised by him, 4[within seven years or three years or one year, as the case may be, of the first publication of the work], or if a translation has been so published, it has been out of print;   (b)      The applicant has proved to the satisfaction of the Copyright Board that he had requested and had been denied authorisation by the owner of the copyright to produce and publish such translations or that 4[he was, after due diligence on his part, unable to find] the owner of the copyright;   (c)      Where the applicant was unable to find the owner of the copyright, he had sent a copy of his request for 4[such authorisation by registered air mail post to the publisher whose name appears from the work, and in the case of an application for a licence under sub-section (1)] not less than two months before 4[such application];   5[(cc)            A period of six months in the case of an application under sub-section (lA) (not being an application under the proviso thereto), or nine months in the case of an application under the proviso to that subsection, has elapsed from the date of making the request under clause (b) of this proviso, or where a copy of the request has been sent under clause (c) of this proviso, from the date of sending of such copy, and the translation of the work in the language mentioned in the application has not been published by the owner of the copyright in the work or any person authorised by him within the said period of six months or nine months, as the case may be;   (ccc)   In the case of any application made under sub-section (IA), -   (i)       The name of the author and the title of the particular edition of the work proposed to be translated are printed on all the copies of the translation;   (ii)      If the work is composed mainly of illustrations, the provisions of section 32A are also complied with;   (d)      The Copyright Board is satisfied that the applicant is competent to produce and publish a correct translation of the work and possesses the means to pay to the owner of the copyright the royalties payable to him under this section;   (e)      The author has not withdrawn from circulation copies of the work; and   (f)       An opportunity of being heard is given, wherever practicable, to the owner of the copyright in the work. On 1/29/05 6:00 PM, "Ravikant" wrote: > Dear experts, > > Could somebody please please fill me in on the exact IP regime that currently > rules the publication of works translated in Indian languages, especially > from the non-Indian languages? Is there a legal document I need to consult > before deciding on publishing such a work? Sudhir once told me that Indian > copyright system is different and non-obtrusive. > > Thanks in advance > cheers > ravikant > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law From lawrence at altlawforum.org Mon Jan 31 12:30:13 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Mon, 31 Jan 2005 12:30:13 +0530 Subject: [Commons-Law] query about IP in translation In-Reply-To: <20050131063407.1288F4BE64@ws1-1.us4.outblaze.com> Message-ID: Hi tato It is from the copyright act , you may also want to look at sec 31 a which deals with compulsory licenses for unpublished indian works The copyright act is available on www.indialawinfo.com Lawrence 1[31A. Compulsory licence in unpublished Indian works- (1) Where, in the case of an Indian work referred to in sub-clause (iii) of clause (1) of section 2, the author is dead or unknown or cannot be traced, or the owner of the copyright in such work cannot be found, any person may apply to the Copyright Board for a licence to publish such work or a translation thereof in any language. (2) Before making an application under sub-section (1), the applicant shall publish his proposal in one issue of a daily newspaper in the English language having circulation in the major part of the country and where the application is for the publication of a translation in any language, also in one issue of any daily newspaper in that language. (3) Every such application shall be made in such form as may be prescribed and shall be accompanied with a copy of the advertisement issued under subsection (2), and such fee as may be prescribed. (4) Where an application is made to the Copyright Board under this section, it may, after holding such inquiry as may be prescribed, direct the Registrar of Copyrightsto grant to the applicant a licence to publish the work or a translation thereof in the language mentioned in the application subject to the payment of such royalty and subject to such other terms and conditions as the Copyright Board may determine, and thereupon the Registrar of Copyrights shall grant the licence to the applicant in accordance with the direction of the Copyright Board. (5) Where a licence is granted under this section, the Registrar of Copyrights may, by order, direct the applicant to deposit the amount of the royalty determined by the Copyright Board in the public account of India or in any other account specified by the Copyright Board so as to enable to owner of the copyright or, as the case may be, his heirs, executors or the legal representatives to claim such royalty at any time. (6) Without prejudice to the foregoing provisions of this section, in the case of a work referred to in sub-section (1), if the original author is dead, the Central Government may, if it considers that the publication of the work is desirable in the national interest, require the heirs, executors or legal representatives of the author to publish such work within such period as may be specified by it. (7) Where any work is not published within the period specified by the Central Government under sub-section (6), the copyright board may, on an application made by any person for permission to publish the work and after hearing the parties concerned, permit such publication on payment of such royalty as the Copyright Board may, in the circumstances of such case, determine in the prescribed manner.] On 1/31/05 12:04 PM, "Dhritabrata BHATTACHARJYA Tato" wrote: > hi, > > i would like to know about the sources of those two articles... are they > Indian laws??? International Intellectual Property Codes... > > thanx > > tato -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050131/4d565ab4/attachment.html From prabhuram at gmail.com Mon Jan 31 15:50:23 2005 From: prabhuram at gmail.com (Ram) Date: Mon, 31 Jan 2005 11:20:23 +0100 Subject: [Commons-Law] Recognising the Rights of Indigenous Communities in Peru Message-ID: <68752c9f05013102205987a753@mail.gmail.com> Dear all, Six indigenous communities from Peru have reached a groundbreaking agreement with the Lima-based International Potato Center (IPC) that recognises the communities' rights over the native potato strains and associated traditional knowledge. The agreement requires signatories to ensure that the genetic resources and knowledge should remain in the custody of the communities and "do not become subject to intellectual property rights in any form". "These indigenous people are against patents," Argumedo stressed, adding that patents "represent a model of property that does not fit into their worldview" which is based on exchanging and sharing information openly. Please find below the text of the Agreement warm regards Ram -------------------------------------------------------------------------------- Asociacion Andes - Potato Park - International Potato Centre AGREEMENT ON THE REPATRIATION, RESTORATION AND MONITORING OF AGROBIODIVERSITY OF NATIVE POTATOES AND ASSOCIATED COMMUNITY KNOWLEDGE SYSTEMS between The Association of Communities in the Potato Park, represented by the Association for Nature and Sustainable Development (ANDES, in its Spanish acronym) and The International Potato Centre (CIP, in its Spanish acronym) This document contains the Agreement between the Association of Communities in the Potato Park ("the Park"), represented by the Association for Nature and Sustainable Development ("ANDES") in the person of the President of the Management Committee, Mr. Alejandro Argumedo Medina, of Jr. Ruinas 451, Cusco, Peru; and the International Potato Centre ("CIP"), represented by the Director General Dr. Hubert G. Zandstra of Avenida La Molina 1895, La Molina, Lima. I. Given that: The two parties are aware that the conservation, sustainable use and development of maximum agrobiodiversity is of vital importance in order to improve the nutrition, health and other needs of the growing global population, and play a central role in the maintenance of sustainable systems within the biosphere. Both the Park and CIP are aware of the central importance of continuity in in situ and ex situ strategies for conservation, sustainable use and development of agricultural biodiversity. There is acknowledgement that indigenous and local communities have been, and continue to be, the main custodians of agricultural systems, and the authors of related knowledge. Indigenous communities constitute a global community which is committed to mutual progress and benefit through open and equitable sharing and exchange of practical and cultural knowledge systems which contribute to human creativity and progress. Both parties are aware that customary rights and responsibilities underpin the custody of agrobiodiversity by indigenous communities, and agree on the need to promote the restoration of these rights and responsibilities. The provisions of the FAO International Treaty on Plant Genetic Resources for Food and Agriculture, and the Convention on Biological Diversity (CBD) are fundamental to the effective implementation of this Agreement in relationship to the respect and promotion of the rights and responsibilities of local indigenous communities and of biodiversity. Both the Park and CIP recognise that the Potato Park is a community which started and is managed within a conservation area, and which forms an innovative bridge between traditional concepts of in situ and ex situ conservation, increases the conservation and sustainable use of biodiversity, and promotes local and indigenous knowledge systems and rights. CIP is an international body regulated through the Headquarters Agreement between the Government of the Republic of Peru and the International Potato Centre. CIP seeks to contribute to the reduction of poverty and achieve food security on a sustained basis in developing countries through scientific research and related activities on potato, sweet potato, other root and tuber crops, and through improved management of natural resource in the Andes and other mountain areas. The Potato Park is a local model of conservation of sustainable use of agrobiodiversity and promotion and protection of the associated resources, knowledge and traditional practices, developed by the Association for Nature and Sustainable Development ANDES, and six indigenous communities in Pisaq, Cusco: Saccaca, Cuyo Grande, Amaru, Paru-Paru, Pampallacta and Chawaytire. CIP has the necessary capacity for the conservation and sustainable use of potato biodiversity and that of other Andean roots and tubers, and is committed to the United Nations Millennium Development Goals, including the sustainable and culturally-appropriate development of local and indigenous communities. The terms used in this Agreement are defined in Annex 1. This Annex forms an integral part of this Agreement. Therefore, the Park and CIP, taking into account their budgetary constraints, agree to sign this Agreement for the "Repatriation, restoration and monitoring of agrobiodiversity of native potato and associated community knowledge systems" according to the following terms: II. Objectives 1. Promote the cultivation, use and maintenance of maximum diversity of traditional or locally appropriate agricultural resources. 2. Ensure that genetic resources and knowledge remain under the custody of the communities and do not become subject to intellectual property rights in any form. 3. Promote, through collaborative research, the role of in situ and ex situ strategies in the conservation of agricultural biodiversity. Moreover, through this Agreement, strengthen the role of the Potato Park as a means of promoting continuity between the two strategies for the mutual benefit of the two parties and of conservation and agricultural development in general. 4. Develop the collaboration between the two parties and others, in ways which promote respect for the biological resources and associated rights and responsibilities of local and indigenous communities. 5. Implement this Agreement with regard to traditional principles associated with rural development laws and common practices and the promotion of the rights and traditions of the indigenous communities of the Park, including but not limited to, the previous agreement on activities which might affect the rights and responsibilities of these communities. III. Scope This Agreement is limited to the repatriation of elements related to agrobiodiversity of native potato and associated knowledge available for custody by indigenous communities in the Park. This includes, follow-up by the two parties to carry out participatory research on the flow and evolution of diversity, classification, variation and geographical distribution, and management of materials repatriated to the Park, issues related to the continuity of in situ and ex situ conservation, and other activities which are mutually agreed by the parties. IV. Nature of the Agreement 1. This Agreement establishes a relationship of mutual collaboration between the Park and CIP to fulfil the objectives and activities indicated herein. 2. This Agreement should not grant rights to either party to act, communicate or take any other action in the name of the other, unless the other party has given its consent. 3. All rights, obligations, responsibilities and benefits obtained under this Agreement should be considered to be of the parties, except where otherwise indicated in the Agreement. V. Compatibility with national and international regulations 1. This Agreement is within the framework of the principles established in the Convention on Biological Diversity (CBD), the FAO International Treaty on Plant Genetic Resources for Food and Agriculture, and other relevant international, regional and national agreements and treaties with which it is compatible. 2. The two parties agree to adapt this Agreement to other relevant legislation and regulations which come into force in the future. VI. Responsibilities 1. Joint responsibilities of the Park and CIP a) Promote the in situ conservation and management, and its relationship with ex situ conservation of genetic resources of native potato. b) As far as physical, human and finance resources permit, to multiply, ensure the condition of and make available these materials for redistribution to third parties. c) As far as possible, to jointly seek funding sources to support the development of the activities described in this Agreement. d) Jointly promote the development and distribution of publicity. e) Keep each other mutually informed regarding activities related to this Agreement. f) The parties will produce reports on progress related to the Agreement any time agreed by both, and when it is relevant to provide joint information to the CBD, the FAO or other national, regional or international bodies. g) The parties agree to implement the Agreement in such as way as to promote respect, preserve and maintain indigenous and local knowledge, innovation and practices. h) Acknowledging the enormous contribution which the communities within the Park have made and continue to make to the conservation and development of genetic plant resources. The parties also agree: i. Subject to availability of resources, to include in the collaborative activities the recording and protection of community knowledge systems related to genetic resources for food and farming. ii. To support the right of the communities to an equitable share of the benefits gained from the use of genetic plant resources for food and agriculture. iii. To carry out actions to integrate community activities as a unique part of agricultural research and development which complement modern approaches, and to explore alternatives for a respectful interaction between these two approaches and the development of innovative strategies in this field. iv. The parties recognise that concepts and standards of community rights and peasant rights are rapidly evolving and agree to discuss the adaptation of the provisions of this Agreement as necessary to reflect future standards. 2. Responsibilities of the Park Depending on the resources available: a) To maintain viable genetic material for distribution and sowing by members of the Potato Park and third parties, in accordance with the Agreement. b) To maintain access to the genetic material. c) Whenever necessary, to obtain the consent of other indigenous and local community organisations for the redistribution of repatriated native crops. d) To observe the terms and conditions of the Potato Park regulations. e) To provide information to CIP on the activities of the Potato Park, in accordance with the terms of this Agreement. f) To participate in collaborative research on issues indicated in this Agreement and others which may be agreed and are of mutual interest to the parties. 3. Responsibilities of CIP Depending on its human resource, financial and physical capacity: a) To prepare and make available the genetic material for its repatriation. b) To guarantee the good condition of the plant material. The repatriated material must be free of known pests and disease, or must first have gone through pest and disease eradication by CIP. c) To provide technical assistance to the Park for the maintenance, monitoring and multiplication of seed and management of the repatriated genetic materials. VII. Normative aspects 1. The parties recognise the role of the Potato Park in developing a community protocol for the management of knowledge systems, in accordance with the customary rights and responsibilities of the communities, and agree to implement this Agreement in such a way as to reflect the principles of open sharing for mutual benefit and for the benefit of humanity. 2. The parties agree that this provision shall be fulfilled through the management of biological material in accordance with the provisions of the FAO International Treaty on Plant Genetic Resources, and the CIP policy on genetic resources (1988), which are based on the CBD principles (1993) and which respect the 1994 Custody Agreements with the FAO, under which CIP shall not demand legal ownership of designated germoplasm (such as cultivars of native potato), or associated information, and shall ensure that any other person or institution which receives the germoplasm shall be subject to the same provisions. VIII. Confidentiality 1. The parties agree that this Agreement, and any later amendment to the same, shall be available on request or through any means considered appropriate, subject to the following conditions: a) Where repatriated biological diversity is the subject of current research by CIP, the Park agrees to maintain confidentiality of the details of such research and development, if CIP so requests and where this confidentiality is for specific reasons. Confidentiality shall not be required beyond the term required for these specific reasons. b) When the details on any repatriated biological diversity, under this Agreement, have been handed over by CIP under confidentiality terms, the Park agrees to respect those terms. 2. The parties agree that any financial right or obligation arising from this Agreement and any later amendment of the Agreement should be reported through the appropriate institutional means, or any other relevant means considered acceptable by the parties. IX. Information 1. The parties agree to notify the Peruvian authority responsible for regulating access to genetic materials of any repatriation of agricultural biological material carried out under this Agreement. 2. If one of the parties is required under this Agreement to provide duplicates of repatriated agricultural biodiversity to a third party, the other party will be notified of this transaction. X. Distribution of possible benefits The parties agree that possible benefits arising from the activities using repatriated materials for food and agriculture, should in the first instance be used to develop and improve the broader functions of the Park and its services, such as those which benefit the communities in general, the region, and the country. We are using the definition of benefits contained in the FAO International Treaty. The mechanisms for implementing benefit sharing will be developed by mutual agreement of the parties. XI. Implementation 1. It is agreed that the Association for Nature and Sustainable Development, ANDES, shall act as the first contact and representative of the Park, and that any communication and notification from CIP to the Park shall be addressed to ANDES. 2. ANDES shall ensure that communications and notifications from CIP to the Park should be conveyed quickly and accurately. XII. Validity, Term and Modification 1. This Agreement shall be valid from the date of signature and shall remain valid for the period of five (5) years, and may be renewed for subsequent periods of five (5) years as requested by the parties. 2. This Agreement may be amended under the mutual agreement of the parties. Any amendment must be explicit and in writing, signed by the representatives of the parties and attached to the Agreement. Any modification related to the role, rights or obligations of ANDES should have the consent of the authorised representatives of ANDES. XIII. Termination of the Agreement This Agreement may be rescinded by either of the parties, and at any time, as long as the party intending to terminate the Agreement notifies the other party of its intention with six months? notice. This notification must be expressed in writing. XIV. Fulfilment of the Agreement Neither of the parties shall be held responsible by the other for delays or non-fulfilment of the obligations set out in this Agreement due to external causes beyond their control (force majeure or chance events) including, but not restricted to, any of the following: act of God, act of government, war, fire, flood, climate or environmental change, explosion, social or industrial unrest or disputes by a third party. The Agreement shall be suspended for the duration of the cause when the affected party gives written notification to the other party of the cause and possible duration, and explains how this will affect its responsibilities. XV. Conflict resolution Both parties agree to establish conflict resolution procedures within six months of signature of this Agreement. These procedures shall be mutually agreed by the two parties and shall as far as possible reflect normal conflict resolution principles. The relevant document shall be annexed to this Agreement. Both parties agree to the terms of this Agreement, and sign it in triplicate on December 17, 2004. On behalf of the Association of Communities in the Potato Park Mr. Alejandro Peralta Huaman Vice-President of the Management Committee [Signed] On behalf of the Association for Nature and Sustainable Development ANDES Dr. Alejandro Argumedo Medina President of the Advisory Committee [Signed] On behalf of the International Potato Centre Dr. Hubert G. Zandstra Director General [Signed] Annex 1: Definition of terms for the purpose of this Agreement Repatriation: The return and distribution of components of the knowledge systems such as samples of plant varieties and associated knowledge. The objective of the repatriation is the restoration of these components of the system. Agrobiodiversity: The variety and variability of plans, animals and micro-organisms necessary to maintain the essential functions of the eco-system, its structure and processes for and in support of the production of food and food security. Knowledge systems: Includes biological resources, associated knowledge and practices which belong to or are in the custody of local or indigenous communities of Peru, and related intellectual property. The indivisibility of the resources, the associated knowledge and the culture is fundamental to the integrity of knowledge systems. Intellectual property: The value of knowledge resulting from intellectual activity. This knowledge may be adapted to obtain (intellectual) property rights recognised by law. Intellectual property obligations: Refers to the responsibilities recognised by indigenous and local communities in accordance with customary law and related to intangible components of agricultural bio-diversity. Intellectual property rights: Refers to legal instruments to allow those claiming the right, to protect an innovation from appropriation by others, either through use or through commercialisation. Consisting primarily of patents, licences, obtainer's rights, author's rights, trademarks and secrets. -- "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 Mon Jan 31 17:26:20 2005 From: prabhuram at gmail.com (Ram) Date: Mon, 31 Jan 2005 12:56:20 +0100 Subject: [Commons-Law] Piracy: Lessons from US history Message-ID: <68752c9f05013103563cfc695b@mail.gmail.com> Dear all, Please find below the text of an article from the latest issue of Businessworld, that is based on an interview which Businessworld did with Doron Ben-Atar, Fordham University at the recently concluded Contested Commons/Trespassing Publics Conference at New Delhi. warm regards Ram How to stop worrying and learn to live with piracy A US professor has rocked the current patent debate by saying that piracy is not only inevitable, it may even be beneficial. Doron S. Ben-Atar is hardly your usual suspect when it comes to subversion. He is a genial giant from the world of academia, a professor of history at Fordham University in New York who has written or co-authored several books, a researcher who has won prestigious fellowships. For all that, he has managed to undermine the conventional arguments in today's hotly debated question of who owns intellectual property (IP) - simply by looking at the issue through the prism of the past. Ben-Atar's contention is that all developed nations, especially the US, did not respect IP rights and indulged in rampant piracy - and he has detailed researches to prove this - during a certain period in their history of industrialisation. Tracing the roots of patent and copyright laws in early America, he says that during the country's industrial revolution, its very prosperity was founded on copyright infringement, industrial espionage and outright theft of IP. What could be construed as subversion is his belief that developing countries should be allowed to do the same. He believes this for two reasons. One: no amount of regulation and policing will stamp out piracy. Indeed, a new study validates this; it shows that losses due to software piracy are rampant across the world, but are highest in the US itself (see 'Topping The Piracy Charts'). Two: it would be unfair to force developing nations to devote their scarce resources to protect the interests of the rich and powerful. He maintains that 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 IP." And here is a radical prescription: leaders of developing nations should pay lip service to IP agreements "and occasionally raid a warehouse full of pirated CDs or prosecute a high-profile pirate". That's because US history teaches us that symbolic acts and talk of principles, accompanied by lax enforcement, are a winning combination, he says (see 'Lessons For India'). This unusual perspective on intellectual piracy comes in a riveting study that Ben-Atar has brought out on the historical intellectual piracy in the US and the efforts made by Britain to stem this outflow to its former colony. Published some months ago, Trade Secrets: Intellectual Piracy And The Origins of American Industrial Power (Yale University Press) has received widespread interest. Much of the buzz around the professor's thesis has been occasioned by the growing competition to a range of American industries from the giant manufacturing hub of China, and to a lesser degree, India and other emerging economies. Ben-Atar takes pains to highlight the many ironies surrounding the IP issue in America. At the same time that the young republic was indulging in full-scale piracy, it had also enacted the most exacting patent laws which required inventions to be original and novel across the world, and not just in America - unlike Europe which granted patents to introducers of technology in use elsewhere. That set new standards for protecting IP. But, shows Ben-Atar, it was a Janus-faced approach. Nearly every branch of manufacture in the US was founded upon imported skill and machinery which was smuggled in because there were strict prohibitions in Europe, especially in Britain, against the emigration of skilled artisans and the exportation of machinery. The IP laws were actually a smokescreen for a very different reality, says the Israel-born academic who went to study in the US 25 years ago. The statutory requirement of international originality and novelty did not hinder widespread and officially sanctioned technology piracy. In fact, most of the patent applications were for devices already in use, since getting a patent involved little more than successful completion of paperwork. But what use is the past in the current battle by the US and allies to impose the WTO-mandated trade related aspects of intellectual property rights (TRIPS) agreement on developing countries? Does history have any les-sons for today's IP warriors in an intensely contested arena? Ben-Atar says it is important to remind Americans of their past so that they better understand what is happening in other parts of the world. "Before Americans rush to condemn those who pirate our knowhow, they must not forget how the US became the richest and most powerful nation on earth." Towards the closing decades of the 18th century, the British colonies of North America were mostly underdeveloped agricultural settlements. The foundations of the American empire were laid during the next 75 years as the US was transformed from an underdeveloped decentralised entity on the periphery of the Atlantic economy into the hub of industry, wealth, and power. "Piracy," says Ben-Atar flatly, "played a crucial role in this process." So, if the developing world is taking a similar route, the US should not be complaining. It is no surprise, says he, that while all WTO members promise to respect international IP rights, in practice, developing nations do little to enforce those laws. His basic point is that all efforts to protect technology 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." The latest collision between the US and China on IP violations substantiate his position. In recent weeks, the confrontation between the two trading par-tners has accelerated over US charges that China's state-owned car manufacturer, Chery Automobile Company, had stolen the design from General Motors to make its QQ model. In December last year, GM filed a lawsuit against Chery Automobile for alleged piracy of the design of its Chevrolet Spark, developed by its South Korean affiliate Daewoo. In recent days, US officials have been stepping up the heat on the Chinese government to crack down on IP theft. According to the US commerce department, Chinese piracy is bleeding America of nearly $24 billion annually. In a sharp attack two weeks ago, US commerce secretary Donald L. Evans told the Chinese leaders that they had to 'forcefully confront' the widespread violations of IP rights in China to avoid strains on bilateral relations. While Chery has denied the piracy charge and said that it "is one of the key state-backed automakers that depends on itself for development", the Chinese government's response has been laconic. It has advised GM to resolve the issue through mediation or legal means. That is likely to prove costly for GM, since QQ's sales are already way ahead of the Spark, which was launched after the Chinese mini-car hit the roads. And in a most ironic twist, the six-year-old Chery - it is China's eighth largest automaker with sales of around 90,000 vehicles - has just signed a deal with a major American car firm to export cars to the US. Some analysts believe it is Chery's deal with Visionary Vehicles (in which it has also committed to investing $200 million in the Chinese company) that has prompted the high-decibel Washington response. Lessons for India Doron Ben-atar is categorical about one thing: he is not advocating piracy. Some excerpts from an interview with BW. Are you saying that developing countries should flout international IP regulations and take to piracy? Ben-atar: I am not drawing these historical parallels to condone piracy, but to point out the wrong-headedness of the West's often self-righteous position on IP. Trips imposes patent obligations on developing countries. There are penalties for flouting the rules. Ben-atar: It would be wrong of me to claim that I really under-stand the context and complexities of the current system. What the US benefited from was the absence of international agencies with coercive powers like GATT and TRIPS. The recent development in India is bad for the entire world because the new Ordinance (the amendment of the Patents Act) has alarming consequences. Indian generic drugs had a monumental influence in addressing the health concerns of the underdeveloped world. What can developing countries like India do? Ben-atar: The American experience shows how you can negotiate the terrain of IP by saying you want to adhere to certain standards, but claiming that you are producing something different. The second lesson is of greater importance. The key to the American economic miracle was the immig-ration of millions who brought their skills and ingenuity. Developing nations must develop their own IP, unless they are content with the crumbs. Is it enough to copy the IP of the developed countries? Ben-atar: Developing nations, however, must realise that they will not be able to find prosperity through piracy alone. The only way you can stop the brain drain is by creating an equal environment in India, one that will compensate the bright people for staying behind. There are others who believe that the Ben-Atar is only too right about the impossibility of checking IP theft. The US justice department for one. It said in a recent report that the country was losing the battle against piracy. This is especially true of software. According to the first annual study on software piracy conducted in 2003 by Business Software Alliance (BSA) and IDC (the IT industry's market research and forecasting firm), the industry is losing about $30 billion annually. The rate of losses, however, are the highest in Eastern Europe (71 per cent) compared with 53 per cent for the Asia-Pacific region. All of which, it would appear, underlines the futility of enacting legislation to prevent the diffusion of knowledge. Ultimately, says Ben-Atar, devoting resources to enforcing western standards of intellectual property in the developing world is not only hypocritical and sometimes cruel, but above all, a futile act. "A country's most valuable asset is not yesterday's invention, but tomorrow's innovation. -- "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."