From bogus@does.not.exist.com Mon Dec 10 11:52:20 2007 From: bogus@does.not.exist.com () Date: Mon, 10 Dec 2007 06:22:20 -0000 Subject: No subject Message-ID: scene of an armed conflict. The crimes of which Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic were found guilty by the Trial Chamber were closely related to this armed conflict. Non-Serb civilians were killed, raped or otherwise mistreated as a direct consequence of that armed conflict. Kunarac, Kovac and Vukovic also participated in this campaign which sought, inter alia, to rid the area of Foca of its non-Serb inhabitants. One of the targets of the campaign were the Muslim civilians, women in particular. They were detained in various centres where the conditions of hygiene were intolerable and where they were subjected to many acts of physical violence, including multiple rapes. The criminal conduct of the three appellants was part of this systematic attack on the non-Serb civilians. All three knew that the area of Foca was the scene of an armed conflict. They also knew that an attack on the non-Serb civilian population had been launched and that their criminal acts occurred within or were part of this attack. On 22 February 2001, the Trial Chamber found Dragoljub Kunarac guilty of crimes against humanity on the counts of enslavement, rape and torture as well as violations of the laws and customs of war on the counts of rape and torture. In the same decision, Radomir Kovac was found guilty of crimes against humanity on the counts of enslavement and rape as well as violations of the laws and customs of war on the count of outrages upon personal dignity. Zoran Vukovic was found guilty of crimes against humanity on the counts of rape and torture as well as violations of the laws and customs of war on the counts of rape and torture. The three accused were given single sentences of 28, 20 and 12 years� imprisonment respectively. On 6 March 2001, Radomir Kovac and Zoran Vukovic filed a notice of appeal against the Trial Chamber Judgement and sentence. On 7 March 2001, Dragoljub Kunarac did so as well. The Appellants presented several grounds of appeal. The Appeals Chamber noted that five of them were common to at least two of the three Appellants and dealt with them in Chapters III to VII of this Appeals Judgement. Each of the grounds raised by one of the Appellants alone is addressed in a separate chapter. I. COMMON GROUNDS OF APPEAL RELATING TO ARTICLE 3 OF THE STATUTE: A. Existence of an armed conflict and the nexus of the criminal conduct therewith: According to the Appellants, the Trial Chamber erred in concluding that there was an armed conflict in two municipalities bordering the municipality of Foca, namely the municipalities of Gacko and Kalinovik. Given that these municipalities are contiguous and neighbouring municipalities of Foca and given also that the Appellants conceded that there was an armed conflict in the area of Foca, the Appeals Chamber considers that the Prosecutor did not have to prove that there was an armed conflict in each and every square inch of the area in question recalling that the state of armed conflict is not limited to the areas of actual military combat but exists across the entire territory under the control of the warring parties. Ample evidence was adduced before the Trial Chamber to justifiably conclude that an armed conflict was taking place in the territory of the three municipalities in question. These grounds then led to the question of whether the Trial Chamber committed an error in formulating the criterion applicable for determining whether the required nexus between the armed conflict and the criminal behaviour did indeed exist. All three Appellants held that the criterion used by the Appeals Chamber was insufficient. In their opinion, the existence of a nexus should have been established for each crime and it would have been appropriate to ask whether the acts in question may be perpetrated even if there is no armed conflict. The Appeals Chamber states that the required nexus is not however one of cause and effect between the armed conflict and the commission of the crime. It is sufficient that the existence of the armed conflict must have played a substantial part in the perpetrator�s ability to commit the crime, his decision to commit it, the manner in which he committed it or the purpose for which he committed it. Consequently, the Trial Chamber was justified in taking into account, inter alia, the following factors: the fact that the perpetrators are combatants; the fact that the victims are non-combatants; the fact that the victims are members of the opposing party and the fact that the acts may be said to serve the ultimate goal of a military campaign. However, in this case, it was established that the perpetrators acted in furtherance of or under the guise of the armed conflict. This is sufficient to conclude that their acts were closely related to that conflict as required under Article 3 of the Statute. The Appeals Chamber can consider only that the Trial Chamber�s finding on that point is unimpeachable. B. Concerning the material scope of Article 3 of the Statute and common Article 3 of the 1949 Geneva Conventions: In accordance with the jurisprudence of the Tribunal, the Appeals Chamber does not accept the Appellants� unsupported assertions that Article 3 of the Statute is restricted in such a way as to be limited to the protection of property and the proper use of permitted weapons, and that it does not cover serious violations of Common article 3 of the 1949 Geneva Conventions and that it is concerned only with the rights of warring parties as opposed to the protection of private individuals. This ground is therefore rejected. II. COMMON GROUNDS OF APPEAL RELATING TO ARTICLE 5 OF THE STATUTE: The Appellants raise a number of complaints in respect of the chapeau elements of Article 5 of the Statute relating to crimes against humanity as established by the Trial Chamber. A. Nexus with the armed conflict under Article 5 of the Statute: This requirement set out in Article 5 is only a prerequisite to the exercise of the Tribunal�s jurisdiction. It is satisfied merely by the proof that there was an armed conflict and, contrary to the Appellants� arguments, does not require a material nexus between the acts of the accused and the armed conflict. In adopting the Trial Chamber�s conclusion that there was an armed conflict in the area and on the dates set out in the Indictments, the Appeals Chamber rejects these grounds of appeal. B. Existence of an "attack": The Appellants argue that the Trial Chamber erred in stating that there was an attack on the non-Serb civilian population of Foca. The Appeals Chamber is satisfied however that the Trial Chamber correctly defined and interpreted the concept of "attack" which it regarded as a type of conduct resulting in acts of violence. In the definition of a crime against humanity, the word "attack" is not limited to the use of armed force but encompasses, inter alia, situations in which persons not taking any active part in the hostilities are mistreated or situations in which a non-combatant entity is targeted � that is, any civilian population. The Trial Chamber�s conclusions in relation to the attack are unimpeachable and the Appeals Chamber therefore rejects these grounds of appeal. C. Condition according to which the attack must be directed against any civilian population: The Appellants state that what happened to the non-Serb citizens of the Foca municipality was not the regrettable consequence of an attack directed against the civilian population as such, but rather the unfortunate result of a legitimate military operation. In other words, there was "collateral damage". Certain elements, however, were sufficient to reasonably convince the Trial Chamber Judges that the attack was effectively directed against a civilian "population", rather than against a limited number of individuals chosen at random, inter alia, the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course... The Appeals Chamber is satisfied that the Trial Chamber did not err in concluding that such an attack occurred. Moreover, in identifying the attacked "population", that is the non-Serb population of Foca, it was thus able to discern an attempt to disguise criminal acts as a military enterprise. These grounds of appeal are therefore rejected. D. "Widespread or systematic" nature of the attack: According to the Appellants, even if accepted, the evidence of the crimes committed against the non-Serb civilians would not suffice to conclude that the attack was widespread or systematic, due to its restricted character both in terms of significance and quantity. The Appellants add that in legal terms the attack must be widespread and systematic. However, the Appeals Chamber considers that the Trial Chamber correctly defined the adjective "widespread" as referring inter alia to the number of victims of the attack and to its being carried out on a wide scale and the adjective "systematic" as referring to the organised or repetitive character of the acts of violence. In order to determine what constitutes a "widespread" or "systematic" attack, a Trial Chamber relies in particular on the means, methods and resources of the attackers, the consequences of the attack upon the targeted population, the number of victims, the discriminatory nature of the acts, the possible participation of officials or authorities or any other identifiable patterns of the crimes... Moreover, the Appeals Chamber correctly, and in accordance with law, recalled that the attack had to either be "widespread" or "systematic", specifying that the requirement is disjunctive rather than cumulative. In relation to the circumstances of this case, the Trial Chamber did not err in concluding that the attack against the non-Serb civilian population of Foca was systematic. The Appeals Chamber therefore rejects these grounds of appeal. E. Nexus with the attack and the required mens rea for crimes against humanity: The Appellants argue that the Trial Chamber erred in concluding that there was a nexus between their acts and the attack because they were not even aware of that attack, because their acts had a purely military character and because they in no way wished to participate in a possible attack against the civilian population. As properly noted by the Trial Chamber, the nexus between the acts of the accused and the attack consists of two elements: the commission of an act which is objectively part of the attack coupled with knowledge on the part of the accused that there is an attack on the civilian population and that his act is part thereof. The Appeals Chamber is satisfied that the Trial Chamber defined and applied the appropriate criterion regarding the nexus between the acts of the accused and the attack. These grounds of appeal are therefore rejected. III. GROUNDS OF APPEAL RELATING TO THE TRIAL CHAMBER�S DEFINITION OF THE OFFENCES: A. Definition of the crime of enslavement: The Appellants propose to substitute the following elements for those considered by the Trial Chamber for the crime of enslavement: the accused must have considered the victim "as its own ownership", there must have been the constant and clear lack of consent of the victim, the victim must have been detained for an indefinite or at least for a prolonged period of time and the accused must have had the intent to detain the victim under constant control for a prolonged period in order to use the victim for sexual acts. However, the Appeals Chamber does not accept the premise that lack of consent is a constituent element of the crime. It abides by the Trial Chamber�s decision attributing a relative importance to the duration of the detention and not considering it an element of the crime. It concurs with the Trial Chamber that the required mens rea for this crime consists of the intentional exercise of a power attached to the right of ownership over the victims without it being necessary to prove that the accused intended to detain the victims under constant control for a prolonged period in order to use them for sexual acts. Consequently, the Appeals Chamber is of the opinion that the Trial Chamber�s definition of the crime of enslavement is not too broad and does indeed reflect customary international law at the time when the alleged crimes were committed. The grounds of appeal relating to the definition of the crime of enslavement are therefore rejected. B. Definition of the crime of rape: According to the Appellants, the crime of rape requires, in addition to penetration, the showing of two additional elements: force or threat of force and the victim�s "continuous" or "genuine" resistance. The Appeals Chamber concurs with the Trial Chamber�s definition of rape following its extensive review of the continental and common law legal systems, since the central element in this definition arises from the victim�s lack of consent. Moreover, the Appeals Chamber states that it is appropriate to reject the Appellants� "resistance" requirement, justified neither in law or fact, and that the use of force in itself is not an element constituting rape. The coercive circumstances present in this case made the victims� consent to the instant sexual acts impossible. The grounds of appeal relating to the definition of the crime of rape are therefore rejected. C. Definition of the crime of torture: The Appellants concerned did not challenge the definition of torture but asserted that the constitutive elements of the crime of torture have not been proven beyond reasonable doubt in this case. The Appeals Chamber wishes to specify that some acts establish per se the suffering of those upon whom they are inflicted. Rape is obviously such an act. Moreover, the sexual motivation to which the accused admitted certainly does not exclude the intent to commit an act which has as a consequence severe pain and suffering or the purpose of discrimination. The grounds of appeal relating to the crime of torture are rejected. D. Definition of the crime of outrages upon personal dignity (Kovac): According to the Appellant Kovac, the Trial Chamber did not define which acts are likely to constitute outrages upon personal dignity or establish a specific intent on his part to humiliate or degrade the victim. However, the Appeals Chamber considers that the Trial Chamber correctly defined the objective threshold for an act to constitute an outrage upon personal dignity, that is "any act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity". Moreover, the Trial Chamber rightly considered that it sufficed that the Appellant knew, as any reasonable person would have, that his acts could cause serious humiliation, degradation or otherwise be a serious attack on human dignity. The grounds of appeal relating to the definition of the crime of outrages upon personal dignity are rejected. IV. CUMULATIVE CHARGES AND CONVICTIONS: The Appeals Chamber rejects the argument that the crimes were inappropriately charged and considers it even unnecessary to rehearse in this Appeals Judgement a settled jurisprudence on this point. With regard to the cumulative convictions, the Appeals Chamber applied the method set out in the Delalic ("Celebici") Appeals Judgement. It, like the Trial Chamber, considers that convictions for the same conduct under Article 5 of the Statute (crimes against humanity) and Article 3 of the Statute (violations of the laws or customs of war) are permissible and dismisses the appeal on this point. As regards the Appellants� arguments in respect of cumulative convictions under Article 5, given the circumstances of the case, the Appeals Chamber concludes that all the constitutive elements of rape and torture exist. It is also possible to cumulate, under Article 3 of the Statute, a conviction for rape and a conviction for torture for the same conduct. The crimes of rape and torture each contain one materially distinct element. In this case, for cumulative convictions under both Article 5 and Article 3, rape and sexual violence constitute acts of torture. The Appeals Chamber therefore rejects the appeal on this point. The Appellant Kovac�s separate ground of appeal: the Appellant Kovac argues that he was wrongly convicted of both rape and outrages upon personal dignity under Article 3 of the Statute. The Appeals Chamber rejects the argument, considering that the Trial Chamber did not base its convictions on the same conduct. All the other grounds of appeal relating to cumulative convictions are rejected. V. INDIVIDUAL GROUNDS OF APPEAL: Errors of fact alleged by Kunarac: The Appeals Chamber rejects all of the grounds of appeal raised by Kunarac against the Trial Chamber�s factual findings regarding his alibi and counts 1 to 4, 9 and 10, 11 and 12, and 18 to 20. The Appellant has not shown that the Trial Chamber committed an error of fact occasioning a miscarriage of justice. Errors of fact alleged by Kovac: The Appeals Chamber rejects all of Kovac�s grounds of appeal against the Trial Chamber�s factual findings regarding his identification, the conditions in his apartment, the offences committed against FWS-75, A.B., FWS-87, and A.S., the outrages upon personal dignity, the sale of FWS-87 and A.S. and the rape convictions. The Appellant has not shown that the Trial Chamber committed an error of fact occasioning a miscarriage of justice. Errors of fact alleged by Vukovic: The Appeals Chamber rejects the appeal brought by the Appellant Vukovic against the Trial Chamber�s findings regarding the alleged omissions noted in the Indictment, the rape of FWS-50, his identification and the evaluation of the exculpatory evidence. The Appellant has not shown that the Trial Chamber committed an error of fact occasioning a miscarriage of justice. VI. GROUNDS OF APPEAL RELATING TO SENTENCING: A. Single sentence: The accused presented grounds asserting, in substance, that the Rules do not authorise the imposition of a single sentence and that for each crime of which an accused has been convicted an individual sentence should be handed down. The Appeals Chamber holds that neither Rule 87(C) nor Rule 101(C) of the 18th edition of the Rules prohibited a Trial Chamber from imposing a single sentence and recalls that single sentences are not unknown in the Tribunal�s practice. These grounds are dismissed. B. Recourse to the sentencing practice in the courts of the former Yugoslavia: The Appellants argue that the Trial Chamber should have conformed to the general sentencing practice in the former Yugoslavia, in particular, in the sense that the sentence under appeal should not exceed the maximum applied by the courts of the former Yugoslavia. The Appeals Chamber holds that although a Trial Chamber must take into consideration the general sentencing practice in the former Yugoslavia it is not bound by such practice. The Appeals Chamber confirms the findings of the Trial Judgement which stated that it is established case-law at the Tribunal that the practice of the courts in the former Yugoslavia does not bind the Trial Chambers in the determination of a sentence. The Trial Chamber did indeed review the sentencing practice applied by the courts of the former Yugoslavia by way of hearing a Defence expert witness on the matter and thereby complied with the provisions of Article 24(1) of the Statute and Rule 101(B)(iii) of the Rules. It did not venture outside its discretion in setting the sentence, nor did it err on this point. These grounds of appeal are rejected. C. Aggravating factors: The Appellants submitted that their crimes should not have incurred the sentences pronounced because certain related aggravating factors were not properly evaluated: 1. Vulnerability of certain victims: Article 24(2) of the Statute states that in imposing the sentences, the Trial Chambers must take into account the gravity of the offence. Whether or not the vulnerability of the victim is an element of the crime of rape does not affect its being evidence of the gravity of the crime and that, within the meaning of the Statute, such gravity may be duly evaluated during the determination of the sentence. The Trial Chamber committed no error in this respect, and this ground of appeal is therefore rejected. 2. Alleged contradictions in the Trial Judgement (Kunarac): The Appellant Kunarac contends that the Trial Chamber reached contradictory findings in paragraphs 858 and 863 with regard to his role in the armed conflict in the former Yugoslavia. The two paragraphs at issue clearly state that, as far as these crimes are concerned, he was not considered as being in a position of command. This ground of appeal is therefore without merit and the Chamber dismisses it. 3. Issue of the age of the victims, all but one younger than 19: The Trial Chamber rightly took into consideration the evidence of the Defence expert witness on the sentences incurred for the crime of rape in the former Yugoslavia who confirmed that, in that country, aggravated factors were attached to the rape of young girls under the age of 18. In the view of the Appeals Chamber, the expert�s evidence did not contradict the prevailing practice in the former Yugoslav Republic of Bosnia and Herzegovina. By virtue of its inherent discretionary power, the Trial Chamber was entitled to consider that the age of 19 is sufficiently close to the protected age of special vulnerability for it to view that age as an aggravating factor. As for the Appellant Vukovic�s allegation that an error was committed in evaluating the age of victim FWS-50, the Appeals Chamber responds that the fact that two slightly different ages were given to the victim in the Trial Judgement (approximately 16 and 15�) takes nothing away from the fact that she was young, and that this could constitute an aggravating factor. The Appeals Chamber therefore finds that the Trial Chamber did not make an error in taking into consideration the young age of the victims specified in the Trial Judgement. Accordingly, these grounds of appeal are dismissed. 4. Aggravating factor of enslavement over a long period (Kunarac) or the prolonged character of mistreatment inflicted upon some of the victims (Kovac): The Appeals Chamber agrees with the Trial Chamber that duration may be a factor to take into account "when considering whether someone was enslaved" but that it is not one of the elements of the offence. The longer the period of enslavement, the more serious the offence. The Appeals Chamber subscribes to the opinion of the Trial Chamber that the duration of the crimes of enslavement, rape and outrages upon personal dignity, between one month and four months approximately, was sufficiently long to incur an aggravation of the sentence. As such, these grounds of appeal are dismissed. 5. Issue of the discriminatory grounds, an element of the offences punishable under Article 5 of the Statute or an aggravating factor: The Appellant Kunarac claimed that the Trial Chamber erred in regarding the discriminatory intent as an aggravating factor as it allegedly constitutes an element of the crimes specified under Article 5 of the Statute. In this regard, the Appeals Chamber recalls the Tadic Appeal Judgement which states that discriminatory intent "is an indispensable legal ingredient of the offence only with regard to those crimes for which this is expressly required, that is, for Article 5(h) of the Statute, concerning various types of persecution". It is not required for the other offences listed under Article 5 of the Statute. Consequently, this ground of appeal is rejected. 6. Issue of retribution as a sentencing purpose (Kovac): In the case-law of both this Tribunal and the ICTR, retribution has always been taken into consideration as a purpose of the sentencing, it being "interpreted [...] as punishment of an offender for his specific criminal conduct". The Appellant failed to substantiate his claim of an alleged trend in international law which speaks differently from the one followed by this Tribunal and the ICTR. This ground of appeal is therefore dismissed. D. Mitigating factors: KUNARAC The Appellant claims that the fact that none of the victims has suffered any severe consequences at his hands should be considered as a mitigating factor, as should the fact that he is the father of three young children. The inherent gravity of these offences, as the starting point for the sentencing procedure, demands severe punishment, which will not be diminished because the offences are claimed to have produced no serious effects for the victims. This ground of appeal is therefore rejected. The Appeals Chamber holds that the family aspect should have been taken into consideration as a mitigating factor. This ground of appeal is thus partly successful. However, in view of the number and severity of the offences committed, the Appeals Chamber finds that the sentence imposed by the Trial Chamber is the appropriate one and thus upholds the decision in this regard. KOVAC The Appellant argues that the Trial Chamber should have taken into account the fact that he had no intention to harm Muslims, nor the knowledge that his actions formed part of a widespread and systematic attack. Before the sentencing proceedings, the Trial Chamber had already accepted these factors as being proved beyond all reasonable doubt, resulting in a conviction. The Appellant thus cannot re-litigate this issue in the course of the sentencing appeal. This ground of appeal is therefore dismissed. As regards the second mitigating factor raised by the Appellant, the Appeals Chamber merely notes that the four women he kept in his apartment against their will and mistreated were Muslims. It rejects this unreasoned ground of appeal. Lastly, the Appellant pleads his relationship with FWS-87 and the protection he extended to her and to A.S.. The Appeals Chamber agrees with the Trial Chamber�s view that the relationship between the Appellant and FWS-87 was not one of love, "but rather one of cruel opportunism on Kovac�s part, of constant abuses and domination over a girl who, at the relevant time, was only about 15 years old" and with the finding that the Appellant "substantially assisted Jagos Kostic in raping A.S.". This ground of appeal is rejected. VUKOVIC The Appellant argues that he helped "numerous [...] Muslim families", that no serious consequences arose from his acts and that no force or compulsion was used. Lastly, the Appellant submits that the fact that he is married and has two children should also be taken into consideration. The Appeals Chamber holds that the Appellant�s help to other Muslims in the conflict does not change the fact that he committed serious crimes against FWS-50, that his acts did have serious consequences and that, as the Trial Judgement rightly points out, force or compulsion was used prior to rape. These grounds of appeal are thus rejected. As for the Appellant�s family situation, it should admittedly have been considered as a mitigating factor but, although it allows this ground of appeal, the Appeals Chamber concurs with the length of the imprisonment decided by the Trial Chamber. E. Credit for time served: The Trial Chamber did make an Oral Statement, on 22 February 2001, stating that the time spent in custody would be credited to the sentences of the three convicted persons. If the Appellants had had the slightest doubt, they could have, through their Counsel, raised the matter immediately before the Trial Chamber for clarification. That would have been the proper forum. These grounds of appeal are dismissed, provided that the last paragraph of the Trial Judgement is read together with the Oral Statement of the Trial Chamber of 22 February 2001. The Appellants will therefore receive credit for time served in detention as calculated from the moment they surrendered to the Tribunal or were placed in its custody. Will the Accused please rise. DISPOSITION: For the foregoing reasons, A. The Appeals of Dragoljub Kunarac against convictions and sentence 1. Convictions The Appeals Chamber: DISMISSES the appeal brought by Dragoljub Kunarac against his convictions. Accordingly, the Appeals Chamber AFFIRMS the convictions entered by the Trial Chamber for Dragoljub Kunarac on Counts 1-4, 9-12 and 18-20 of Indictment IT-96-23. 2. Sentence The Appeals Chamber: DISMISSES the appeal brought by Dragoljub Kunarac against his sentence; CORRECTS the formal disposition of the Trial Judgement to reflect the Oral Statement made by the Trial Chamber that credit should be given for time served and, accordingly, Dragoljub Kunarac is entitled to credit for the time he has spent in custody since his surrender on 4 March 1998; AND CONSIDERING the number and severity of the offences committed, FINDS that the sentence imposed by the Trial Chamber is appropriate. Accordingly, the Appeals Chamber AFFIRMS the sentence of 28 years� imprisonment as imposed by the Trial Chamber. B. The Appeals of Radomir Kovac against convictions and sentence 1. Convictions The Appeals Chamber: DISMISSES the appeal brought by Radomir Kovac against his convictions. Accordingly, the Appeals Chamber AFFIRMS the convictions entered by the Trial Chamber for Radomir Kovac on Counts 22-25 of Indictment IT-96-23. 2. Sentence The Appeals Chamber: DISMISSES the appeal brought by Radomir Kovac against his sentence; CORRECTS the formal disposition of the Trial Judgement to reflect the Oral Statement made by the Trial Chamber that credit should be given for time served and, accordingly, Radomir Kovac is entitled to credit for the time he has spent in custody since his arrest on 2 August 1999; AND CONSIDERING the number and severity of the offences committed, FINDS that the sentence imposed by the Trial Chamber is appropriate. Accordingly, the Appeals Chamber AFFIRMS the sentence of 20 years� imprisonment as imposed by the Trial Chamber. C. The Appeals of Zoran Vukovic against convictions and sentence 1. Convictions The Appeals Chamber: DISMISSES the appeal brought by Zoran Vukovic against his convictions. Accordingly, the Appeals Chamber AFFIRMS the convictions entered by the Trial Chamber for Zoran Vukovic on Counts 33-36 of Indictment IT-96-23/1. 2. Sentence The Appeals Chamber: DISMISSES the appeal brought by Zoran Vukovic against his sentence; CORRECTS the formal disposition of the Trial Judgement to reflect the Oral Statement made by the Trial Chamber that credit should be given for time served and, accordingly, Zoran Vukovic is entitled to credit for the time he has spent in custody since his arrest on 23 December 1999; AND CONSIDERING the number and severity of the offences committed, FINDS that the sentence imposed by the Trial Chamber is appropriate. Accordingly, the Appeals Chamber AFFIRMS the sentence of 12 years� imprisonment as imposed by the Trial Chamber. D. Enforcement of Sentences In accordance with Rules 103(C) and 107 of the Rules, the Appeals Chamber orders that Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic are to remain in the custody of the International Tribunal pending the finalisation of arrangements for their transfers to the State or States where their respective sentences will be served. [Source: ICTY Press Release, CVO/ P.I.S./679-E - The Hague, 12 June 2002] Full text of judgment available at: http://www.un.org/icty/foca/appeal/judgement/index.htm -- FIN DEL MENSAJE END OF MESAGGE EINDE BERICHT FIM DA MENSAGEM FINE DEL MESSAGGIO ENDE NACHRICHT FIN DEL MENSAJE END OF MESAGGE EINDE BERICHT FIM DA MENSAGEM FINE DEL MESSAGGIO ENDE NACHRICHT ************************************************************************ This Information is edited and disseminated by Nizkor International Human Rights Team. Nizkor is a member of the Peace and Justice Service-Europe (Serpaj), Derechos Human Rights (USA) and GILC (Global Internet Liberty Campaign). You may find our contact details at: http://www.derechos.org/nizkor/contact.html If you are interested in giving us your economic support, you can use our secure online donation system at: http://www.derechos.org/nizkor/finance/index.php?idioma=ingles If you do not wish to receive Information messages send "unsubscribe" as subject. *********************************************************************** --------------------------------------------------------------------- Please note: Press releases by other organizations distributed in this mailing list do not necessarily imply the endorsement of Derechos --------------------------------------------------------------------- To unsubscribe, e-mail: hr-news-unsubscribe at derechos.net For additional commands, e-mail: hr-news-help at derechos.net If you need help, e-mail: admin at derechos.org ------------------------------------------------------- From bogus@does.not.exist.com Mon Dec 10 11:52:20 2007 From: bogus@does.not.exist.com () Date: Mon, 10 Dec 2007 06:22:20 -0000 Subject: No subject Message-ID: Nitin Sawhney, MIT-Media Lab ThinkCycle: Cooperative Innovation in the Commons Discussion Session: OpenRegistry by Sunil Abraham, Mahiti The challenges of formulating a license: ThinkCycle Closing remarks by Sarai and ALF 4.30 PM - Tea 4.45 PM - A short planning session with student stipends ------------------------------------------------------- From bogus@does.not.exist.com Mon Dec 10 11:52:20 2007 From: bogus@does.not.exist.com () Date: Mon, 10 Dec 2007 06:22:20 -0000 Subject: No subject Message-ID: translating GNU / Linux applications to Kannada On Sat, 2003-01-18 at 17:19, Pramod R wrote: http://www.uea.ac.uk/~j013/wipout/essays/1112szente.htm Sunil -- Sunil Abraham, CEO MAHITI Infotech Pvt. Ltd. 'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98441 01150 sunil at mahiti.org http://www.mahiti.org From bogus@does.not.exist.com Mon Dec 10 11:52:20 2007 From: bogus@does.not.exist.com () Date: Mon, 10 Dec 2007 06:22:20 -0000 Subject: No subject Message-ID: _____________________________________________________ Indian composer wins hip hop wrangle Tuesday, February 4, 2003 Posted: 3:30 PM HKT (0730 GMT) American hip hop artist/producer Dr. Dre reportedly remixed Lahiri's song without crediting him -------------------------------------------------------------------------------- LOS ANGELES, California (Reuters) -- A famed Indian composer has won a court order barring sales of a hip-hop hit he claims borrowed heavily and without credit from one of his songs in an act of "cultural imperialism." A federal judge in Los Angeles on Monday issued an order prohibiting further sales of the song "Addictive" by Truth Hurts unless and until composer Bappi Lahiri is listed on the song's credits, Anthony Kornarens, an attorney for Lahiri said. "The judge took the matter quite seriously and felt as though, from what I could tell, the defendants had not acted appropriately," Kornarens said. Lahiri first filed in October against hip hop producer Dr. Dre, whose real name is Andre Young, Aftermath Records, Aftermath parent Interscope Records and Universal Music Group, the world's largest media company and a unit of Vivendi Universal A spokesman for Universal Music referred calls to Interscope. An Interscope spokeswoman was not immediately available for comment. Dr. Dre's attorney, Howard King, was also not immediately available to comment. Kornarens said Universal's attorneys indicated to the court they would consider an appeal of the injunction. Lahiri claims that the producers of "Addictive" lifted four minutes of the original recording of the song "Thoda Resham Lagta Hai." Truth Hurts' album sold about 600,000 copies between its June release and the time the suit was filed late last year. "Addictive" was released as a single and became a top 10 hit. Truth Hurts, whose real name is Shari Watson, told MTV last year that Dre had remixed "Addictive," according to an article that appeared on the MTV Web site. "He really took it to another level," she said at the time. "He took another part of the Indian sample and added it to the beginning and to the middle." Kornarens, who accused the record label of "cultural imperialism," said the judge set an expedited trial date of June 17 for Lahiri's suit. -------------------------------------------------------------------------------- Copyright 2003 Reuters. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed. http://asia.cnn.com/2003/SHOWBIZ/News/02/04/india.composer.reut/index.html From bogus@does.not.exist.com Mon Dec 10 11:52:20 2007 From: bogus@does.not.exist.com () Date: Mon, 10 Dec 2007 06:22:20 -0000 Subject: No subject Message-ID: _____________________________________________________ Indian composer wins hip hop wrangle Tuesday, February 4, 2003 Posted: 3:30 PM HKT (0730 GMT) American hip hop artist/producer Dr. Dre reportedly remixed Lahiri's song without crediting him -------------------------------------------------------------------------------- LOS ANGELES, California (Reuters) -- A famed Indian composer has won a court order barring sales of a hip-hop hit he claims borrowed heavily and without credit from one of his songs in an act of "cultural imperialism." A federal judge in Los Angeles on Monday issued an order prohibiting further sales of the song "Addictive" by Truth Hurts unless and until composer Bappi Lahiri is listed on the song's credits, Anthony Kornarens, an attorney for Lahiri said. "The judge took the matter quite seriously and felt as though, from what I could tell, the defendants had not acted appropriately," Kornarens said. Lahiri first filed in October against hip hop producer Dr. Dre, whose real name is Andre Young, Aftermath Records, Aftermath parent Interscope Records and Universal Music Group, the world's largest media company and a unit of Vivendi Universal A spokesman for Universal Music referred calls to Interscope. An Interscope spokeswoman was not immediately available for comment. Dr. Dre's attorney, Howard King, was also not immediately available to comment. Kornarens said Universal's attorneys indicated to the court they would consider an appeal of the injunction. Lahiri claims that the producers of "Addictive" lifted four minutes of the original recording of the song "Thoda Resham Lagta Hai." Truth Hurts' album sold about 600,000 copies between its June release and the time the suit was filed late last year. "Addictive" was released as a single and became a top 10 hit. Truth Hurts, whose real name is Shari Watson, told MTV last year that Dre had remixed "Addictive," according to an article that appeared on the MTV Web site. "He really took it to another level," she said at the time. "He took another part of the Indian sample and added it to the beginning and to the middle." Kornarens, who accused the record label of "cultural imperialism," said the judge set an expedited trial date of June 17 for Lahiri's suit. -------------------------------------------------------------------------------- Copyright 2003 Reuters. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed. http://asia.cnn.com/2003/SHOWBIZ/News/02/04/india.composer.reut/index.html _______________________________________________ commons-law mailing list commons-law at mail.sarai.net http://mail.sarai.net/cgi-bin/mailman/listinfo/commons-law Catch all the cricket action. Download Yahoo! Score tracker --0-2008807252-1044421260=:94124 Content-Type: text/html; charset=iso-8859-1 Content-Transfer-Encoding: 8bit

thanks for that, mukund.

the judges order that he merely has to be credited seems to suggest that there may not be an order of damages. presumably the copyright in this is owned by a recording company (which has to file a suit for damages in its own right) and this suit by bappi may have been based on a sort of moral right claim (i.e. lack of attribution). any idea??

regards-shamnad

 

 mukund at nls.ac.in wrote:

Just thought that someone might be interested.-

__________________________________________________


Aah ... finally ! Justice for Mr. Bappi Lahiri.
Now only if ALL the poople and inanimate objects he has copied, take HIM
to court !

_____________________________________________________

From asia.cnn.com

_____________________________________________________


Indian composer wins hip hop wrangle
Tuesday, February 4, 2003 Posted: 3:30 PM HKT (0730 GMT)

American hip hop artist/producer Dr. Dre reportedly remixed Lahiri's song
without crediting him

--------------------------------------------------------------------------------

LOS ANGELES, California (Reuters) -- A famed Indian composer has won a
court order barring sales of a hip-hop hit he claims borrowed heavily and
without credit from one of his songs in an act of "cultural imperialism."

A federal judge in Los Angeles on Monday issued an order prohibiting
further sales of the song "Addictive" by Truth Hurts unless and until
composer Bappi Lahiri is listed on the song's credits, Anthony Kornarens,
an attorney for Lahiri said.

"The judge took the matter quite seriously and felt as though, from what I
could tell, the defendants had not acted appropriately," Kornarens said.

Lahiri first filed in October against hip hop producer Dr. Dre, whose real
name is Andre Young, Aftermath Records, Aftermath parent Interscope
Records and Universal Music Group, the world's largest media company and a
unit of Vivendi Universal

A spokesman for Universal Music referred calls to Interscope. An
Interscope spokeswoman was not immediately available for comment. Dr.
Dre's attorney, Howard King, was also not immediately available to
comment.

Kornarens said Universal's attorneys indicated to the court they would
consider an appeal of the injunction.

Lahiri claims that the producers of "Addictive" lifted four minutes of the
original recording of the song "Thoda Resham Lagta Hai."

Truth Hurts' album sold about 600,000 copies between its June release and
the time the suit was filed late last year.

"Addictive" was released as a single and became a top 10 hit. Truth Hurts,
whose real name is Shari Watson, told MTV last year that Dre had remixed
"Addictive," according to an article that appeared on the MTV Web site.

"He really took it to another level," she said at the time. "He took
another part of the Indian sample and added it to the beginning and to the
middle."

Kornarens, who accused the record label of "cultural imperialism," said
the judge set an expedited trial date of June 17 for Lahiri's suit.



--------------------------------------------------------------------------------

Copyright 2003 Reuters. All rights reserved. This material may not be
published, broadcast, rewritten, or redistributed.


http://asia.cnn.com/2003/SHOWBIZ/News/02/04/india.composer.reut/index.html


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Catch all the cricket action. Download Yahoo! Score tracker --0-2008807252-1044421260=:94124-- From bogus@does.not.exist.com Mon Dec 10 11:52:20 2007 From: bogus@does.not.exist.com () Date: Mon, 10 Dec 2007 06:22:20 -0000 Subject: No subject Message-ID: How Harry Potter was Born: A rags to riches copyright story & Quiz "I was very low, and I had to achieve something.� J.K. Rowling J.K. Rowling, a single mom with an infant daughter, had reached rock bottom. She was a single mom raising a child alone and living on welfare in the cold winter of Edinburgh, Scotland. As she later said, "I was very low, and I had to achieve something. Without the challenge, I would have gone stark raving mad." This is the true story of J.K. Rowling, the author of the famous Harry Potter books, and how her dream to support herself and her child by writing books turned into reality. During her daughter�s naps, she simply sat at a table in a local coffee shop, and began to write the stories that became world famous as books, movies, computer games, music, and more. J.K. Rowling is now one of the most famous authors in the world, who can take care of her family beyond her wildest dreams. But imagine how crushed she would have been, if someone had taken her book after she wrote it in the coffee shop, and had printed it themselves without paying her any money, or had arranged for a movie to be made from the book, or arranged for computer games and music to be created based on the book, and had not given J.K. Rowling a penny! The reason that did not happen is a law called �copyright law.� It�s a powerful law that protects creativity. It can change lives like it changed J.K. Rowling�s life, and the lives of everyone who loves her books. It�s Copyright Power! (For more information on J.K. Rowling and her books, you can go to the web site of her publisher, Scholastic Books: http://www.scholastic.com/harrypotter/author/). Creativity is Hard Work! Everyone is creative, everyone has dreams and ideas, the ability to tell a story or hum a tune or draw a picture. What makes some people different is that they decide that they want to go a step further: they do the hard work of writing down the story, or writing down the music for a song, or recording the song, or buying paint and making the painting. They want to share their creative gift and vision with the world, and they want to paid for doing a good job, just like everyone else. Earning money from creativity means you can keep going, create more, and share with the world. Imagine if J.K. Rowling had only told the Harry Potter stories to her daughter, and never gone to the tremendous effort of writing them down, sitting in that coffee shop filling page after page, getting writer�s cramp and trying to wash the ink off her fingers. Copyright law helps hard working creative people earn money, whether it amounts to a few dollars, or even millions of dollars, whether one person likes their work, or many millions. Copyright Power! Copyright law gave J.K. Rowling copyright power! It says that she alone has the right to decide who can make copies of her book, who can turn her book into a movie, or a computer game, or a song. This is a great power for an author, and J.K. had the power to decide who could do those things, and how much money they would have to pay her. Now she needed a publisher, a company that would turn her story into a book, print copies, and advertise, sell the books, then send her some of the money. Publishers come in lots of different forms. They are called a publisher when they create books and magazines, or a record company when they create CDs and music videos, or a movie or TV company when they make movies and TV shows, or a software company when they make software and games. But all of them are really �publishers:� they take creative work by people like J.K. Rowling and find a way to sell it. But a publisher can�t do anything until the author agrees to let them. When a publisher sends money to an author, it�s called a �royalty� payment. Copyright power means that books can be sold, and royalties earned for the author, even when the author is sleeping or on vacation. That�s copyright power! Authors need their royalties! Unfortunately, there are lots of ways to cheat J.K. and her daughter out of the royalties she worked so hard to receive. If there is a song based on her book, people could rip a copy of the song into an MP3 file and send the file to everyone else on the internet for free. Or if there is a Harry Potter software game, she is being cheated every time someone puts the software files on the web and sends them to others. Or if someone puts copies of her books on line for free, she is cheated every time someone downloads those files. It�s not just the publisher who is losing money: J.K. and people like her are also losing their royalty income. Making or downloading copies that you did not pay for means you infringe the rights of authors like J.K. Copyright infringement is just a fancy word for cheating by getting something for free that should be paid for. Copyright infringer! Most copyright infringers are not truly thieves. They don�t even fully realize or understand that what they are doing is wrong. They especially don�t understand who they are hurting, that it is real people like J.K. Rowling that are hurt when copies are made without the permission of the copyright owner. The problem is it�s incredibly easy to infringe copyright on the internet: One easy click is all it takes to download or send a copy of a song or movie file or software game that wasn�t paid for. But it cheats authors and musicians, people like J.K. Rowling. It also hurts people who work for publishers and may lose their jobs if people stop buying books and CDs and software. Remember that publishers pay lots of royalties to lots of authors who need the money. Even the super successful people like J.K. deserve their success, and deserve their royalties. A Whole Lotta Rights! We live in a high-tech multi media world. A copyright owner, someone like J.K. Rowling or her publisher, may have rights that you would be surprised to learn existed: The right to make and distribute copies, for example printing copies of books and making copies of CDs, DVDs, videos. The right to let someone else use her story: J.K. Rowling had the right to decide what other uses could be made of her Harry Potter story, for example making a movie, or a computer game. J.K. would let other people derive their rights from her copyright, so these are called �derivative rights.� The right of public performance of music, dramas, and dance: Most people do not know that the copyright owner of a song has the right to be paid whenever their music is performed in public, for example in a concert hall, or even on radio, television, and the Internet. And if Harry Potter ever becomes a Broadway show, J.K. has a right to be paid for those public performances on stage. That�s copyright power! The right to display: If J.K. lets someone create Harry Potter artwork including posters, she has the right to control how those images are used. She could be paid a royalty if the image is used on a book cover, or on the Internet. The right to perform sound recordings on the Internet: This is a new right of the Internet era. Record companies and musicians can receive a royalty if someone plays their CD on the Internet. If the CD is the Harry Potter soundtrack, perhaps J.K. will get a share of this royalty too! Snippets, bits, portions, samples, odds and ends: "Fair Use" Sometimes there are situations where it may be OK to use just a snippet of someone�s work without asking first. For example a newspaper review might quote some passages from a Harry Potter book, or a teacher might use one page only out of the entire book as a writing sample, or a church might perform some copyrighted music during a religious service, or a school might perform a school band concert for the community, with any small admission charge used only for educational fund raising activities. Or a TV news program might show a brief excerpt from a Harry Potter movie as part of news reporting. These examples and others are fair to authors like J.K. Rowling, because they do not cheat authors out of royalties. They are called �fair use.� Fair use has limits though. Generally, fair uses will respect an author�s rights and will not replace a genuine sale. If you are making a copy without permission, and the result would be one less copy of the book or CD being sold, it�s not fair to J.K.! Keywords Quiz & Discussion Points: What's creativity? What�s an author? Why do they have Copyright Power? What�s a publisher? What�s are author�s royalties? What�s a copyright infringement? Why does a copyright infringement hurt authors? What types of rights are included in Copyright Power? What�s a fair use? From bogus@does.not.exist.com Mon Dec 10 11:52:20 2007 From: bogus@does.not.exist.com () Date: Mon, 10 Dec 2007 06:22:20 -0000 Subject: No subject Message-ID: "I was very low, and I had to achieve something.� J.K. Rowling J.K. Rowling, a single mom with an infant daughter, had reached rock bottom. She was a single mom raising a child alone and living on welfare in the cold winter of Edinburgh, Scotland. As she later said, "I was very low, and I had to achieve something. Without the challenge, I would have gone stark raving mad." This is the true story of J.K. Rowling, the author of the famous Harry Potter books, and how her dream to support herself and her child by writing books turned into reality. During her daughter�s naps, she simply sat at a table in a local coffee shop, and began to write the stories that became world famous as books, movies, computer games, music, and more. J.K. Rowling is now one of the most famous authors in the world, who can take care of her family beyond her wildest dreams. But imagine how crushed she would have been, if someone had taken her book after she wrote it in the coffee shop, and had printed it themselves without paying her any money, or had arranged for a movie to be made from the book, or arranged for computer games and music to be created based on the book, and had not given J.K. Rowling a penny! The reason that did not happen is a law called �copyright law.� It�s a powerful law that protects creativity. It can change lives like it changed J.K. Rowling�s life, and the lives of everyone who loves her books. It�s Copyright Power! (For more information on J.K. Rowling and her books, you can go to the web site of her publisher, Scholastic Books: http://www.scholastic.com/harrypotter/author/). Creativity is Hard Work! Everyone is creative, everyone has dreams and ideas, the ability to tell a story or hum a tune or draw a picture. What makes some people different is that they decide that they want to go a step further: they do the hard work of writing down the story, or writing down the music for a song, or recording the song, or buying paint and making the painting. They want to share their creative gift and vision with the world, and they want to paid for doing a good job, just like everyone else. Earning money from creativity means you can keep going, create more, and share with the world. Imagine if J.K. Rowling had only told the Harry Potter stories to her daughter, and never gone to the tremendous effort of writing them down, sitting in that coffee shop filling page after page, getting writer�s cramp and trying to wash the ink off her fingers. Copyright law helps hard working creative people earn money, whether it amounts to a few dollars, or even millions of dollars, whether one person likes their work, or many millions. Copyright Power! Copyright law gave J.K. Rowling copyright power! It says that she alone has the right to decide who can make copies of her book, who can turn her book into a movie, or a computer game, or a song. This is a great power for an author, and J.K. had the power to decide who could do those things, and how much money they would have to pay her. Now she needed a publisher, a company that would turn her story into a book, print copies, and advertise, sell the books, then send her some of the money. Publishers come in lots of different forms. They are called a publisher when they create books and magazines, or a record company when they create CDs and music videos, or a movie or TV company when they make movies and TV shows, or a software company when they make software and games. But all of them are really �publishers:� they take creative work by people like J.K. Rowling and find a way to sell it. But a publisher can�t do anything until the author agrees to let them. When a publisher sends money to an author, it�s called a �royalty� payment. Copyright power means that books can be sold, and royalties earned for the author, even when the author is sleeping or on vacation. That�s copyright power! Authors need their royalties! Unfortunately, there are lots of ways to cheat J.K. and her daughter out of the royalties she worked so hard to receive. If there is a song based on her book, people could rip a copy of the song into an MP3 file and send the file to everyone else on the internet for free. Or if there is a Harry Potter software game, she is being cheated every time someone puts the software files on the web and sends them to others. Or if someone puts copies of her books on line for free, she is cheated every time someone downloads those files. It�s not just the publisher who is losing money: J.K. and people like her are also losing their royalty income. Making or downloading copies that you did not pay for means you infringe the rights of authors like J.K. Copyright infringement is just a fancy word for cheating by getting something for free that should be paid for. Copyright infringer! Most copyright infringers are not truly thieves. They don�t even fully realize or understand that what they are doing is wrong. They especially don�t understand who they are hurting, that it is real people like J.K. Rowling that are hurt when copies are made without the permission of the copyright owner. The problem is it�s incredibly easy to infringe copyright on the internet: One easy click is all it takes to download or send a copy of a song or movie file or software game that wasn�t paid for. But it cheats authors and musicians, people like J.K. Rowling. It also hurts people who work for publishers and may lose their jobs if people stop buying books and CDs and software. Remember that publishers pay lots of royalties to lots of authors who need the money. Even the super successful people like J.K. deserve their success, and deserve their royalties. A Whole Lotta Rights! We live in a high-tech multi media world. A copyright owner, someone like J.K. Rowling or her publisher, may have rights that you would be surprised to learn existed: The right to make and distribute copies, for example printing copies of books and making copies of CDs, DVDs, videos. The right to let someone else use her story: J.K. Rowling had the right to decide what other uses could be made of her Harry Potter story, for example making a movie, or a computer game. J.K. would let other people derive their rights from her copyright, so these are called �derivative rights.� The right of public performance of music, dramas, and dance: Most people do not know that the copyright owner of a song has the right to be paid whenever their music is performed in public, for example in a concert hall, or even on radio, television, and the Internet. And if Harry Potter ever becomes a Broadway show, J.K. has a right to be paid for those public performances on stage. That�s copyright power! The right to display: If J.K. lets someone create Harry Potter artwork including posters, she has the right to control how those images are used. She could be paid a royalty if the image is used on a book cover, or on the Internet. The right to perform sound recordings on the Internet: This is a new right of the Internet era. Record companies and musicians can receive a royalty if someone plays their CD on the Internet. If the CD is the Harry Potter soundtrack, perhaps J.K. will get a share of this royalty too! Snippets, bits, portions, samples, odds and ends: "Fair Use" Sometimes there are situations where it may be OK to use just a snippet of someone�s work without asking first. For example a newspaper review might quote some passages from a Harry Potter book, or a teacher might use one page only out of the entire book as a writing sample, or a church might perform some copyrighted music during a religious service, or a school might perform a school band concert for the community, with any small admission charge used only for educational fund raising activities. Or a TV news program might show a brief excerpt from a Harry Potter movie as part of news reporting. These examples and others are fair to authors like J.K. Rowling, because they do not cheat authors out of royalties. They are called �fair use.� Fair use has limits though. Generally, fair uses will respect an author�s rights and will not replace a genuine sale. If you are making a copy without permission, and the result would be one less copy of the book or CD being sold, it�s not fair to J.K.! Keywords Quiz & Discussion Points: What's creativity? What�s an author? Why do they have Copyright Power? What�s a publisher? What�s are author�s royalties? What�s a copyright infringement? Why does a copyright infringement hurt authors? What types of rights are included in Copyright Power? What�s a fair use? Why should everyone celebrate creativity? Celebrate Creativity [Insert CAW logo without the dates] From bogus@does.not.exist.com Mon Dec 10 11:52:20 2007 From: bogus@does.not.exist.com () Date: Mon, 10 Dec 2007 06:22:20 -0000 Subject: No subject Message-ID: �Grey, gnarled, low-browed, knock-kneed, bowed, bent, huge, strange, long-armed, deformed, hunchbacked, misshapen oakmen . . .� This is a personification of the massive trunks and small crowns of the ancient oaks of Staverton. These old trees are the result not of the wildwood (of the Ice Age 13 millennia before) but of wooded pasture. The wooded pasture is a human creation, the result of centuries of accumulated woodmanship, carefully planned so the same land could be used for trees and grazing animals. Coppice (trees like ash and elm that grow again from the stump) provided an indefinite succession of crops of poles (for making rakes, scythe-sticks, surplus used for stakes and firewood); sucker (trees like aspen and cherry that grow again from the root system) formed patches of genetically identical trees called clones; and pollard (trees that are cut six to 15 feet above the ground, leaving a permanent trunk called a bolling), sprouted like coppice stool but out of reach of the livestock.6 In Anglo-Saxon times wooded commons were owned by one person, but used by others, the commoners. Usually the soil belonged to the lord while grazing belonged to the commoners, and the trees to either. Whole towns were timber-framed. The strut and beam of cottages, the curved wooden rafters, the oak benches of worship. Wheels, handles, bowls, tables, and stools were wood. Wood was the source of energy. The Norman Conquest in 1066 disrupted the customs of the forest which had prevailed for centuries. William and his Norman conquerors (�a French bastard with his armed banditti,� said Paine) brought innovations in eating utensils (the fork), a new language (law French), new people (the Normans, the Jews), and different animals (wild boar and deer, the royal game). The forest became a legal rather than a physical entity. The king reserved it exclusively for sport. The forest became the supreme status symbol of the king, from which he could give presents of timber and game. Henry III sent his old nurse, Helen of Winchester, underwood for her fire. From the Forest of Dean the king took minerals, underwood, timber, and red and fallow deer. A haunch of venison was a gift that money could not buy. Henry III for Christmas dinner in 1251 had 430 red deer, 200 fallow deer, 200 roe deer, 1300 hares, 450 rabbits, 2100 partridges, 290 pheasants, 395 swans, 115 cranes, 400 tame pigs, 70 pork brawns, 7000 hens, 120 peafowl, 80 salmon, and lampreys without number. In July 1203, at the height of the crisis in Normandy, King John instructed his chief forester, Hugh de Neville, to sell forest privileges �to make our profit by selling woods and demising assarts.� The king wanted to reward followers with endowments, lands �to raise men from the dust.� The mounted knight was a powerful unit of war, terrifying, expensive, and ubiquitous. Thus the growth of state power, the ability to make war, and complaints against the monarchy arose from the enclosing of land, or afforestation. J. R. Madicott writes that the principal grievances behind the Magna Carta were two: �the malpractices of the sheriff and the extent of the forest. . . . Most physical Forests were also commons and had common-rights dating from before they had been declared Forests.� In 1215 there were 143 forests in England. Hence, the demand to disafforest in chapter 47 of the Magna Carta. After 1216 few forests were enclosed. How was the extent of afforestation known? How was the Magna Carta�s disafforestation to be accomplished? There were no cartographers, no global positioning system, apart from the tramp of human feet in solemn perambulations. They perambulated their constitution by walking the boundaries, observing each stone, each tree. How was this struggle lost to history? We can trace today�s myth of the Magna Carta to the English Revolution. Edward Coke�s �Fine Fetch� Four centuries after 1215, the 17th-century crisis of political legitimacy began. English reformers wished to show that they were not innovators but rather restorers of ancient and true ways that had been lost after 1066. From the Tudor autocracy at the beginning of the century to the Whig oligarchy at the end, and passing through civil wars among the �four kingdoms� and the bourgeois revolution in between�the crisis was conducted in terms of the Magna Carta. Edward Coke was the hero of the Magna Carta�s chapter 39 and its myth-maker. Dismissed as Chief Justice of King�s Bench, imprisoned in the Tower, he helped draw up the Petition of Right of 1628. Charles I heard he was working on a book on the Magna Carta. As Coke lay dying his chambers were ransacked and his manuscripts confiscated. At the beginning of the English Revolution, Parliament ordered their recovery, and they were published posthumously in 1642. Coke�s interpretations focused on chapter 39, which is declaratory of the old law of England, ancient and fundamental. He linked it to Parliament and �due process of law.� He found that it prohibited torture. It upheld habeas corpus. It provided trial by jury. It established rule by law. Royalists and absolutists did not agree. Robert Filmer and Thomas Hobbes rejected customary law, arguing that law is the command of the sovereign, nothing more, nothing less. In 1667 Lord Chief Justice Keeling aroused the wrath of the Commons by responding to a member of a Somerset jury who referred to the Magna Carta, �Magna Farta, what ado with this have we?� President George W. Bush made a similar noise when he told the National Security Council in January 2003, �I do not need to explain why I say things. That�s the interesting thing about being President.� Part of the English Revolution was precisely to make sovereignty �explain things.� Coke did so by a new narrative. �Sir Edward Coke doth not care to hear of the Feudal Law as it was in use at this time, and hath a fine fetch to play off the Great Charter and interpret it by his Modern-law . .� Anyone familiar with wave mechanics knows that the �fetch� of a wave derives its power from the distance it has traveled, not from the particular matter that it happens at any one time to be passing through. The derivation of habeas corpus, trial by jury, rule of law, and the prohibition of torture from chapter 39 is a fetch that has been dear to Western governments since the 17th century. It restrains the summit of power as well as its lesser heights, from dog-catcher to commander-in-chief, from the chatelain of the high keep to the foreman on the shop floor, from the pope to the local D.A., from the elementary school principal to the living-room bully. Yet the figurative language of this interpretation hides the actualities of the labor process, and it removes the human agency of those workers; the social and economic realities acknowledged in the Magna Carta are totally occluded. Coke�s 17th-century interpretation shaped the Magna Carta�s global reach. It took on an Atlantic dimension after Coke helped to draft the royal charter of the Virginia Company in 1606. Other royal charters establishing English colonies in America also alluded to the Magna Carta (Massachusetts in 1629, Maryland in 1632, Maine in 1639, Connecticut in 1662, Rhode Island in 1663). While those colonists used the Magna Carta against the authority of the crown (New York�s dispute of 1680, James Otis in 1764), they ignored its forest provisions altogether when it came to their own intrusions into the woodlands of the indigenous peoples. With Coke�s interpretation the Magna Carta became an instrument of both colonial independence and acquisitive empire. The Levellers Embody the Magna Carta Coke�s chapter 39 as it spread through the empire can be contrasted with its interpretation by commoners in the 17th century. As the early Stuarts sought to intensify their exploitation of forest resources during the transition to coal, they met objections, not from barons so much as from the common people, for the common people were often people with rights in the commons. In response the Levellers fought for �the right, freedome, safety, and well-being of every particular man, woman, and child in England.� They argued that Parliament may not act against the fundamental law of the land as expressed in the Magna Carta. It became �the Englishman�s legall birthright and inheritance.� �Free-Born John� Lilburne based his arguments on the Magna Carta; he said �the liberty of the whole English nation� is in clause 39. Even those who were not commoners in this strict meaning but who had been more or less fully expropriated to become proletarians in the towns and port listened to the radicalizing of the Magna Carta. In desperate times anything seemed possible. In Lincolnshire people opposing encroachments on rights of commons emphasized the law of the land as the basis of their claim.7 In July 1649 Winstanley appealed to the House of Commons, �Desiring their answer: whether the Common People shall have the quiet enjoyment of the Commons and Waste Lands.� �The best lawes that England hath, [viz., the Magna Carta] were got by our Forefathers importunate petitioning unto the kings that still were their Task-masters; and yet these best laws are yoaks and manicles, tying one sort of people to be slaves to another; Clergy and Gentry have got their freedom, but the common people still are, and have been left servants to work for them.�8 Could the Magna Carta help the common people? Let�s return to its origins. The Peace of September 11 and the Widow�s Estovers On leaving Runnymede, scarcely had the mud dried on his boots when King John resumed war upon the barons and began to plot with the pope against them. Innocent III vacated the Charter as null and void and prohibited the king from observing it. As far as the pope was concerned, the barons of England were as bad as the Moslem Saracens themselves. Louis, later to become king of France, invaded England at the barons� invitation in May 1216. King John died in October. Between the death rattle of John and the minority of the new king, Henry III, only nine years old, the fate of the Magna Carta�indeed its whereabouts�was uncertain. William Blackstone tells us that it was not until September 11, 1217, that France and England made peace, at an island in the river Thames near Kingston. Barefoot and shirtless, Louis was required to renounce all claim to the English throne and to restore the charters of liberties granted by King John. Not only did the treaty put an end to two years of civil war, but as the Victorian constitutional historian, William Stubbs, concluded, the treaty was �in practical importance, scarcely inferior to the charter itself.� While the charter served a treaty-like function during the baronial wars, its reissue in time of peace established it as a basis of government. The survival of the original Magna Carta of King John thus depended on the peace of September 11, 1217. This is not all. In the following days the new king granted a new charter of liberties, based on the 1215 charter and �also a charter of the forest,� drafted in 1217. Unlike the 1215 version known to us, the final form of the Magna Carta was in fact comprised of two charters. The charters were reissued together in 1225.9 They were published by being read aloud four times a year: at the feast of St. Michael�s, Christmas, Easter, and at the feast of St. John�s. They were read in Latin certainly, in French translation probably, and in English possibly. William McKechnie states, �it marked the final form assumed by the Magna Carta.� By 1297 Edward I established the charters and directed that they become the common law of the land. Blackstone, who published a scholar�s edition of the charters in 1759 while working at Oxford University Press, writes, �There is no transaction in the antient part of our English history more interesting and important, than the rise and progress, the gradual mutation, and final establishment of the charters of liberties.� By the beginning of the 14th century, he concludes, �the final and complete establishment of the two charters, of liberties and of the forest, which from their first concession under King John A.D. 1215, had been often endangered, and undergone many mutations, for the space of near a century; but were now fixed upon an eternal basis.� In transition from treaty to law, there were notable changes. One of the mutations, occurring between 1215 and 1217, modified chapter seven, considerably expanding widows� rights by adding the clause: . . and she shall have meanwhile her reasonable estover of common.� What is �estover of common�? Coke explains, �When estovers are restrained to woods, it signifieth housebote, hedgebote, and ploughbote.� Botes do not imply a common wood; they could as well appertain to field or hedgerow. Firebote and hedgebote were quotas for fuel and fencing; housebote, cartbote, rights for building and equipment. Coke goes on to say estovers signify sustenance, aliment, or nourishment. Technically, then, �estovers� refers to customary gatherings from the woods; often they refer to subsistence generally. �True Freedom,� Winstanley would write, �lies where a man receives his nourishment and preservation.� The International Covenant on Economic, Social and Cultural Rights declares, �In no case may a people be deprived of its own means of subsistence.� What happened between 1215 and 1217 to cause this clause to be inserted in chapter seven? The answer is war. France invaded. A political crusade was declared against England in 1216�1217. The Fifth Crusade against the Saracens had begun (Ibn Al-Athir wrote, �The entire Muslim world, men and territories, seemed likely at this moment to be lost to the East [the Tartars] on the one hand and the West [the Franks] on the other�).10 War produces widows; widows suffer economic hardship. The �mutation� of chapter 7 between 1215 and 1217 reflected this reality.11 Similarly the 1217 Forest Charter also acknowledged the common rights of the poor. Inasmuch as it protected the commons it was also, and to that extent, a prophylaxis from terror. The Assize of Woodstock (1184) permitted the poor to have their estovers, but only under stringent rules. McKechnie comments: �If the rich suffered injury in their property, the poor suffered in a more pungent way: stern laws prevented them from supplying three of their primary needs; food, firewood, and building materials.� In Stratford, a warden took a quarter of wheat �for their having paling for their corn and for collecting dead wood for their fuel in the demesne wood of the lord king.� Sometimes a local tyrant established a veritable reign of terror. Blackstone wrote that the Forest Charter �provided for a reduction in the severity of forest penalties and for the maintenance of the rights of those who had private woods within the forest; they were to enjoy full rights of pasture and fuel.� Consider some of its provisions: Chapter One: And if he made his own wood forest it shall remain forest saving common of pasture and other things in that forest to those who were accustomed to have them previously. Chapter Nine: Every free man shall agist his wood in the forest as he wishes and have his pannage. Chapter 13: Every free man shall have the eyries of hawks, sparrow hawks, falcons, eagles and herons in his woods, and likewise honey found in his woods. Chapter 14: [Foresters-in-fee may exact chiminage on carts in his bailiwick, or upon horses, of merchants who come to buy wood, timber, bark, or charcoal �to take them elsewhere to sell where they wish.�] Those, on the other hand, who carry wood, bark, or charcoal on their backs for sale, although they get their living by it, shall not in future pay chiminage. Suppose, first, we treated these provisions as things of potential value despite feudal appearance. We can define chiminage as the transportation cost of taking energy sources to the consumer. Herbage is common of pasture. Pannage is the right to let the pigs in to get the acorns and beech-mast. Agistment permits livestock to roam in the forest. The Magna Carta is not a manifesto of the medieval commons, yet it refers to substantive customs of the wooded realm that supported a material culture.12 The widow�s estovers of common is thus the phrase that leads us to a completely different world in which we must use a subsistence perspective to understand the forces of production and the relations of reproduction. -- Monica Narula Sarai: The New Media Initiative 29 Rajpur Road Delhi 110 054 From bogus@does.not.exist.com Mon Dec 10 11:52:20 2007 From: bogus@does.not.exist.com () Date: Mon, 10 Dec 2007 06:22:20 -0000 Subject: No subject Message-ID: R. V. Anuradha Biotechnology & Genetic Engineering: Certain Issues For Law And Policy To Begin With As with any science, the excitement of pursuit of knowledge and a better understanding of life could have been the basis of the growth and evolution of biotechnology. Growing in leaps and bounds, throughout its process of evolution, and more so now than ever before, it has presented a challenge in terms of what is the dividing line between the growth of a scientific discipline and the implications of its commercialisation for society at large, and what the ecological implications of such technology are. I cannot find a better way to express it than in the words of Dorothy Nelkin "that biotechnology raises many of the same problems as nuclear power; the hazards are invisible and there remains uncertainty about the health effects of low level long-term exposure" (Nelkin, 1993). And yet, there are some very significant benefits from such technology�not only from the point of view of understanding the world around us better, but from the point of view of application of that understanding for the benefit of human life and health. At the same time, biotechnology, as with any other technology, is a major source of public power in modern society, and raises important concerns regarding rights of use, control and participation in its use. Discussions about technology, its capacity, what it can and cannot do, what it should and should not do, are the reverse side of the coin to debates on the capacity, ability and entitlements of the humans affected by it. (Feenberg, 1995). Kloppenburg examines this in the case of agricultural biodiversity by questioning whether access to advanced breeding lines and other elite germplasm developed by commercial seed firms in the industrialised nations will actually benefit the bulk of third world producers. Such access might simply reinforce processes of social differentiation among peasant producers, facilitate global elaboration of factor markets, accelerate environmental degradation, and deepen technological dependence among nations (Kloppenberg, 1988). This paper does not seek to make any judgments as regards the growth of biotechnology. Nor does it attempt to cover all the myriad range of issues surrounding the subject. What it does seek to do is to present some of the issues arising in the area of biotechnology in agriculture, and leave them as some points to ponder over. Some illustrations The case of Roundup Monsanto�s Roundup herbicide has as its active ingredient glyphosphate, a broad-spectrum herbicide that has the effect of destroying any crop it falls on. It has been argued that glyphosphate has the effect of binding tightly to the soil particles which are exposed to it. This characteristic, it is stated, goes to ensure that it is not dispersed much from the area it is sprayed on, and hence it has minimal �side effects�. There are contentions for and against such a proposition. However, in practice, farmers normally use it before the crops emerge, and use other herbicides at the later stages of crop growth. The patent that Monsanto holds over Roundup expires in the year 2000. Monsanto has been creating a market niche for genetically engineered crops that can withstand Roundup. Most popular among these are the Roundup Ready (RR) soybeans. A pre-condition for purchasing the RR soybean is the signing of a contract (the Grower�s Contract) which lays down certain constraints on the farmers, including inter alia that the soybeans can be sowed only for one season, and cannot be saved from the harvest for purposes of resale, replanting, or research; the contract allows only the Roundup formula of glyphosphate to be used on the crop. The contract envisages an enforcement mechanism by stipulating that the farmers entering into such contracts are obliged to allow Monsanto representatives to inspect; and the penalties for violation of any of the obligations are high (GRAIN, 1997). One of the arguments in support of the RR Soybean has been that it would decrease herbicide use. However, according to the United States Department of Agriculture (USDA), expanded plantings of the Roundup Ready soybeans in the USA increased the use of glyphosphate on soybeans by 72%. The USDA also reports a 29% increase in overall herbicide use on soybeans. Use of RR soybean varieties has also been thought of as one of the reasons for the outbreak of the soybean Sudden Death Syndrome in some of the states in the USA, since the RR soybean varieties have little resistance to the disease (GRAIN, 1997). The case of Bt Bacillus Thrunginiensis (Bt) is a naturally occurring soil bacterium, fatal to certain insects that had been used by organic gardeners as a traditional pesticide. Non-genetically engineered natural Bt has been used widely by farmers in sprays to kill agricultural pests when needed. It has been hailed as a perfect pesticide because it can specifically target certain pests without having a detrimental effect on mammals, birds or most non-target insect species and microplants. Bt sprays leave no poisonous residue on crops or trees and are readily degraded by sunlight and the environment within a week after application. Recent studies in the United States estimate that 57% of all organic farmers use foliar Bt sprays frequently, occasionally, or as a pest control method of last resort (as cited in Plaint, 1999). Because of the effectiveness and safety of foliar Bt compared to the pesticides it displaces, Bt is a very significant pesticide. Biotechnology has taken the potential of Bt a step further by the production of genetically engineered Bt plants, the logic being that if a plant itself has inherent characteristics of being a Bt pesticide, it would lead to a decrease in the use of any other pesticide. The controversy surrounding such Bt plants, however, is that the widespread use of such plants has proven ecological consequences that cannot be ignored. Such use provides a biological advantage to Bt-resistant insects over and above the normal vulnerable insects in the population and results much faster in the growth of Bt resistant insects. The International Rice Research Institute (IRRI) has been producing Bt rice and itself openly admits to the Bt resistance problem in a pamphlet: "As in the case with all insecticides, insect pests will eventually develop resistance to Bt toxins. It is not possible to predict how long Bt rice will remain effective, but the development of pest resistance to Bt toxins can be slowed by careful design of Bt rice plants and use of appropriate strategies for the deployment of these plants" (GRAIN, 1998). In essence, the commercialization of the traditional Bt biopesticide is being criticized, as the widespread and unplanned use of the pesticide only provides greater scope for the insects to develop resistance to the Bt toxins and thereby destroys any possibility of using this biopesticide in a traditional sustainable manner. Some interesting facts relating to the genetically engineered Bt plants as explained in a plaint filed in March 1999 at the District Court of Columbia, USA, merit serious consideration. The plaint has been filed against the U.S. Environment Protection Agency (EPA) by a number of individual organic farmers and non-governmental organisations seeking redressal against the registration of genetically engineered Bt plants permitted by the EPA. The plaint states that such plants present certain new and unprecedented adverse environmental impacts not associated with the use of natural, foliar Bt sprays. These impacts include, inter alia, the widespread creation of multiple insects resistant to foliar Bt sprays, direct harm to non-target plants and beneficial insect populations by exposure to new, unique forms of Bt toxins, and the dispersal of the genetically engineered Bt traits into non-genetically engineered crops and weeds (Plaint, 1999). The plaint points out that in general, plant pests are susceptible to the use of Bt as a biopesticide because the pests contain genes that confer susceptibility to specific toxins produced by Bt. However, dissemination of genetically engineered Bt plants will lead to selective evolutionary pressure which will cause pests targeted by Bt to lose "susceptibility" genes, that is "resistance" genes rather than "susceptibility" genes will predominate in the population. This will lead to the development of Bt resistance to multiple Bt toxins in major pests within a relatively short period of time (between 2 to 10 years), as evidenced in documented studies of such resistance in the European Corn Borers and the Colorado potato beetle. As a result, Bt foliar sprays will be rendered ineffective and thus be lost as a pest control option for organic and conventional farmers. This will have significant economic impact upon numerous small organic farming operations. Additionally, the loss of Bt will force many farmers to return to using traditional, synthetic insecticides. To further substantiate this, the plaint also draws attention to numerous government-sponsored reports which have found that resistance-management plans are needed to slow the development of Bt resistance occurring because of the commercial use of genetically engineered Bt plants (Plaint, 1999). Terminator and Traitor Technologies Terminator technology uses a genetic engineering approach to prevent the unwanted germination of plant seeds. It essentially ensures sterility of the plant at the end of the first season, thereby forcing farmers to return to the commercial seed market each time they wish to grow the plant. The proponents of the technology insist on its benefits, inter alia, (1) it will stimulate plant breeding for minority crops and marginal lands; (2) that it will encourage the owners of valuable proprietary traits to commercialise them knowing they can�t be stolen or re-used; (3) that it will encourage the use of higher-quality, cleaner seed; (4) that it will end late-season "sprouting" that reduces crop value. The concern of the traditional farmers is, however, that these arguments display a lack of understanding of agriculture in many third world economies, where there already is a tremendous diversity in seed varieties evolved and evolving through research and use in the practical day to day lives of many communities. Such innovation cannot be undermined and thwarted by characteristics introduced to control the very nature of life, and create dependency by forcing the farmer to return to the seed market every year. It may be simple to argue that there is no coercion to purchase seeds with such technology, and that it is a free choice. That would be a na� argument ignoring the force of corporate power and market strategy. The state as a regulator and policy maker would therefore have to make some very clear choices. Traitor technology is essentially technology that disables natural plant functions, which can be activated only by exposure to a chemical. Novartis, which holds a patent on this technology, is reported to have explained this as: "inactivation of endogenous regulation" so that "genes which are natively regulated can be regulated exclusively by the application to the plant of a chemical regulator" (RAFI, March 1999). Among the genes that Novartis can control in this manner are patented SAR (systemic acquired resistance) genes that are critical to a plant�s ability to fight off infections from many viruses and bacteria. The implications of this technology would be to force the farmer to approach the company not only for the seed, but also for the chemical activator. The impact of the chemical on sustainability of the soil, its fertility, are questions that remain unanswered. The �benefits� of such technology for the farmer are difficult to imagine. The traitor technology is the clear manifestation of the undesirable extent of biotechnology development. This vests the corporate with the complete power over the very existence of a plant, the seeds of which a farmer has already bought. Some Thoughts a) Commercialization of genetically modified plants poses serious environmental risks. Further it is widely acknowledged that certain risks associated with these plants are not known. At the same time, the temptation associated with use of such plants is immense, given the promise of increased productivity and lesser use of pesticides. The corporate marketing strategy involved in the process plays an important role as well, as against the lack of an informed debate concerning the long-term implications of use of such plants. In developing countries like India, the presence of a large agriculture-dependent economy, the majority of the members of which are not literate, adds the factor of misinformation and lack of well-informed use of such plants. There is, therefore, an immense responsibility on the regulatory authority dealing with clearances and permission for such plants. The precautionary approach has emerged as an important concept in international environmental law as a manner of addressing unpredictable ecological implications. The essence of the precautionary approach is embodied in Principle 15 of the Rio Declaration (UN Doc. A/CONF.151/5) as well as in the Preamble to the Convention on Biological Diversity (UN Doc.A/CONF.151/26), both concluded at the Earth Summit in 1992 which, in essence, provide that where there are threats of serious or irreversible damage, or threat of significant reduction or loss of biodiversity, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environment degradation and avoid or minimise such threats. The effect of this principle would essentially be that assessment of the potential impacts of a genetically modified plant must be carried out before, and not after permission is given to commercialise such a plant. However, even the success of such an approach would be limited, since it is unlikely that ecosystem dynamics will be well enough understood at any time in the near future for this aspect of environmental impact to be confidently predicted. The impact on endangered species is one of special concern, but one that is not adequately addressed by the law. Laws dealing with biotechnology normally adopt a risk assessment approach; however, the difference of opinion invariably surrounds the thresholds of risk and degree of uncertainty allowed in such approaches. Further, the resistance- management strategies as proposed by the law or the regulatory authority are often either inadequate or are found lacking in terms of implementation. For instance, in the case of the Bt plants, there is agreement in that the approach to be adopted is to grow Bt toxin-free plants alongside the genetically engineered variety, and that refuge areas would enable the toxin-free varieties to survive and contribute their genes to the next generation. However, this has not always accompanied cultivation of Bt crops. b) A further aspect for consideration is the lack of any mandatory labeling of any genetically modified plant and its products, in order to draw the essential distinction between such a plant and an ordinary one. This is not a necessary prerequisite in law today. For instance, there is no mandatory pesticide labeling of any crop grown from Bt plants. Similarly, in the case of the Roundup Ready soybeans, there is no requirement to label the genetically engineered crops. This has implications in that consumers are not given a chance to make an informed choice. c) Commercialization of genetically modified crops could pose a threat for crop diversity. Traditional varieties of crops cultivated by farmers across the world are rich sources of genetic diversity. Not all these varieties have been mapped and documented. However, with the introduction of genetically modified crops the fear is that these may lead to a proliferation of monocultures that would have severe implications for biological diversity, and following from the same, disappearance of specific traits such as resistance to diseases. The Union of Concerned Scientists, a non profit international organisation based in the USA, in their report of 1993 state that crop genetic diversity is already diminishing at a stunning rate, as farmers around the world are persuaded to abandon the numerous landraces of the past in favor of a relatively few modern crop varieties, and further that expensive transgenic plants, which will generally have to create large markets to recoup research costs, will exacerbate that trend (The Union of Concerned Scientists, 1993). d) It would not be far-fetched to state that biotechnology has militaristic implications that need to be addressed. The technologies, equipment and material in relation to biological agents are invariably known to have dual uses. As pointed out by one commentator, the most common cheating scenario places the facilities of a weapons programme amidst a nation�s biotechnology industry. Continuous monitoring of a country�s dual use capabilities therefore lies at the core of an effective regime to ensure that use of biological agents is not used as a pretext for developing biological weapons. e) Intellectual property rights (IPRs) over biotechnological �inventions� is another area of controversy. The principles of the EU Directive on Legal Protection of Biotechnological Inventions state that the advantages of protecting biotechnology and genetic engineering include the development of less polluting and more economical methods of cultivation and improvements in combating major epidemics, endemic diseases and hunger in the world. Plant Breeders� Rights is another form of IPR that gives a monopolistic right over marketing a certain variety of seed for a period of time. The rationale for PBRs is to provide an incentive for commercial breeders. The problem with IPRs is with the fact that: (1) It regards nature and eco-systems as raw materials that can be �innovated� upon and have monopoly rights attained over them; (2) there are ethical objections to the patenting of life itself; (3) there are ecological considerations relating to the fact that monopoly rights over life forms may lead to the disappearance of biological diversity; and that genetic manipulation, unless very strictly regulated, could result in severe ecological disruption; (4) privatisation and granting IPRs over elements of diversity would eventually vitiate the concept of �sustainable use�.; (5) granting IPRs over genetically modified varieties would have serious implications for the rights of farming communities all over the world, which have over a period of many years of consistent observation, skill and effort, developed invaluable knowledge and along with it a storehouse of invaluable varieties of seeds. IPRs, by interfering with their informal method of innovation and selection, conflict with this. f) The other major problem with biotechnology is that it often relies on the appropriation of knowledge, innovations and practices of local and indigenous communities throughout the world. For instance, the multitude properties and uses of the Neem tree (Azadirachta indica) have been known to people in India for centuries. Patents have been obtained now by W.R.Grace on the insecticidal, human non-toxic and biodegradable properties of the Neem�all of which have been known and used by Indians. This and many other instances, termed as �biopiracy�, have generated some very serious debates on the notion of "innovation", of ��new and inventive steps", that form the basis for any patent. The fact that the knowledge of local and indigenous communities may not have arisen in a �modern scientific laboratory�, but has its own rational, scientific basis, is a fact that has not concerned the notion of biotechnology and of IPRs over biotechnology. The fact that modern scientific �innovation� often runs piggy-back on knowledge of local and indigenous communities has never caused any serious debate until recently. The Convention on Biological Diversity concluded at the Earth Summit in 1992 specifically recognizes the need to recognize and protect the knowledge, innovations and practices of local and indigenous communities. Countries are in the process of formulating their laws for regulating access to genetic resources, and ensuring the return of benefits for the same. g) The other significant aspect for concern is the need for biosafety guidelines. Nations today normally have authorities designated to evaluate proposals for the use of biotechnology; the degree of capabilities, of transparency, and of public participation in decision-making, however, differs. Biosafety Protocol under the Convention on Biological Diversity At the international level, the debate regarding regulation for transboundary movements of genetically modified organisms has been going on for some time now. This has been one of the most contentious issues at the meetings of the Conference of Parties to the Convention on Biological Diversity. At the fourth Conference of Parties to the CBD, a decision was adopted to the effect that the Biosafety Protocol should be finalised and adopted by early 1999. However, this has not been possible because some countries are of the opinion that biotechnology is the technology for the future and that over-regulating it would endanger competitiveness in the world market. A group of six grain- exporting countries (the Miami group), supported by the Biotechnology Industry Organisation have maintained highly inflexible positions on most of the contentious issues of the Protocol. On the other hand, Scandinavian countries have been insisting on a precautionary approach. The concerns of many developing countries is that the protocol should provide adequate safety measures, and a system of accountability and redress for harm resulting from transboundary movement of LMOs (living modified organisms), as well as increased capacity to deal with biosafety issues. The decision of the Conference of Parties to the CBD that initiated the development of the protocol defines the scope of the proposed protocol in a manner as to cover transboundary movement of LMOs resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity. The terms of the draft of the biosafety protocol contain similar terms; however, the thresholds for determining how and in what manner adverse effects on the conservation and sustainable use of biodiversity will be determined, is not dealt with. A further contentious issue is whether the Protocol should include only LMOs or also products thereof. The Protocol provides that agreements or arrangements entered into by Parties must be consistent with the objectives of the Protocol, and not result in a lower level of protection than that provided for by the Protocol, and that parties must inform the Biosafety Clearing-House of any agreements or arrangements they have entered into before or after the Protocol�s coming into force, and the Protocol�s provisions will not affect transboundary movements taking place pursuant to these. The Protocol recommends a procedure for Advance Informed Agreement (AIA) between the parties to the Protocol, prior to the transfer of biotechnology and/or LMOs. However, there is difference of opinion whether the AIA procedure would be applicable for all LMOs or whether low-risk LMOs should be exempted from AIA. At the Cartegena meeting, several developed countries said that only LMOs destined for deliberate release into the environment should be subject to AIA procedures, and LMOs intended for human or animal consumption did not pose a significant threat to biodiversity and could be dealt with in other provisions. Some delegates emphasized that countries had the right to take stricter measures. Many developing countries said that all LMOs should be subject to AIA procedures as any LMO, irrespective of intended use, could be accidentally released during transfer and handling. Many developing countries have also objected to the proposal of developed countries suggesting potential differentiation in risk levels between LMOs intended for deliberate release and those intended for food, feed and processing, supporting instead the subjection of all LMOs to the AIA procedures. A study of the meetings for the Biosafety Protocol reflects starkly on how political positions affect decisions about the environment and the power of the biotechnology industry in influencing those positions. In Conclusion The question confronting the regulation of biotechnology development is, on what grounds and on what principles should regulation draw the line and set up a framework for biotechnology. How can a framework be established that would effectively regulate and control the events that would be and have already been unleashed by a technology that purports to benefit humanity as no other, but at the same time has the inherent capacity to provide humanity with its worst nightmare�the vesting of food and other natural resources in the hands of a few�putting the alteration of natural life processes to an extent that life itself can be controlled in the hands of a few, for when attempts are made to control plant life, in effect attempts are made to control the entire food chain. It should not be forgotten that life as we know it all evolved somewhere at some time on this planet from a single cell that obtained the ability to convert sunlight into life-sustaining energy. Major alterations in evolution have occurred through minor, insignificant changes�a single cell able to replicate being one such change. Biotechnology now seeks to control these very forces of not only sustenance but also evolution and must, consequently, be regulated. Some examples of technology changing and regulating our lives without our realisating it are present in daily modern life: electricity discovered and regulated just over a century ago, the computer�not even a century old, flying machines�again not even a century old�now make visions of interplanetary exploration itself possible, and these are not even as integral to our existence as food itself. I would like to conclude with the thoughts of A.N.Whitehead who stated: "Duty arises from your potential control over the course of events. Where attainable knowledge could have changed the issue, ignorance has the guilt of vice." References Feenberg, A., Subversive Rationalisation: Technology, Power and Democracy. Technology and the Politics of Knowledge, (Feenberg and Hannay, eds.), Indianapolis: Indiana University Press, 1995. GRAIN. Seedling, March 1997, Vol. 14, No. 1. GRAIN. Seedling, September 1998, Vol. 15, No. 3. Kloppenburg, J.R., First the seed: The political economy of plant biotechnology 1492�2000, Cambridge: Cambridge University Press, 1988. Nelkin, D.A., Against the Tide of Technology. The Higher,1993. Plaint. 1999. Complaint filed at the United States District Court of Columbia, March 1999. (The text of the plaint can be seen at http://www.icta.org/legal/index.htm� the website of International Centre for Technology Assessment) RAFI. March 1999. News Release at http://www.rafi.org dated 29 March 1999. The Union of Concerned Scientists, Perils Amidst the Promise: Ecological risks of transgenic crops in a global market, Cambridge, Massachusetts, 1993 (Also available on http://www.binas.unido.org). UNDP. (1994) Conserving indigenous knowledge: Integrating two systems of innovation, An independent study by the Rural Advancement Foundation International, New York: UNDP. � From bogus@does.not.exist.com Mon Dec 10 11:52:20 2007 From: bogus@does.not.exist.com () Date: Mon, 10 Dec 2007 06:22:20 -0000 Subject: No subject Message-ID: mere acceptance of remuneration or delivery of manuscript does not constitute an assignment of copyright. It is also clear that in determining, whether there is only a licence to print, publish and sell copies or there is partial assignment of copyright, the Court has to look at the real meaning of an agreement, rather than the particular choice of words of the parties. Section 19 deals with 'Mode of assignment'. From the comments it is clear that the assignment of Copyright in any work shall- (i) identify such work, and (ii) specify the rights assigned, the duration, territorial extent of such assignment and the amount of royalty payable, and (iii) be in writing signed by the assignor or by his duly authorised agent. As far as licence is concerned, Chapter VI of the Act deals with it. However, Sections 30, 30A and 31 are relevant sections for the purpose of this case which deal with 'Licenses by owners of copyright', 'Application of Section 19 & 19A' and 'Compulsory licence in works withheld from public. Section 51 deals with 'when copyright is infringed'. Section 51 shall be read longwith Section 14 of the Act which deals with the meaning of copyright which says that 'copyright' 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: Section 58 deals with 'Rights of owners against persons possessing or dealing with infringing copies'. Section 2 (f) deals with "cinematograph film" and Section 2 (m) defines "infringing copy". 6. The learned counsel for the respondents however argued that there is no dispute in regard to the facts as stated by the appellant in this case. On the other hand, he submitted that Section 51 deals with the question as to when the copyright is infringed. Section 52 on the other hand is an exception to Section 51. Section 52(j) reads this: (1) The following acts shall not constitute an infringement of copyright, namely:- (j) the making of sound recordings in respect of any literary, dramatic or musical work, if- (i) sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work; (ii) the person making the sound recordings has given a notice of his intention to make the sound recordings , has provided copies of all covers or labels with which the sound recordings are to be sold, and has paid in the prescribed manner to the owner of rights in the work royalties in respect of all such sound recordings to be made by him, at the rate fixed by the Copyright Board in this behalf:" As indicated above, there is no dispute that the respondent has complied with the requirement of Section 52 (j) (ii) r/w Rule 21 of the Rules by issuing a notice of his intention to make a sound recording has provided copies of all covers or labels with which the sound recordings are to be sold and has paid in the prescribed manner to the owner of rights in the work royalties of Rs. 1,500/ each in respect of all such sound recordings to be made by him and Rs. 1,500/- is the rate fixed by the Copyright Board in this behalf. Sub-clause (ii) of Section 52 shall be read in conjunction with Rule 2 of Copyright Rules, 1958, which deals with making of records. 7. The learned counsel for the appellant has vehemently argued that if Section 52 (j) (ii) is read separately, the very right of the appellant is deemed to have been infringed as admittedly the respondents have not obtained the permission of the appellant who is the owner of the copyright. He further emphasised that by merely sending a sum of Rs. 1,500/- towards royalty and expressing his intention by notice to produce the cassettes if held to be sufficient compliance, the appellant cannot proceed against the respondents even if it produces more than 1000 copies and in actual fact, he submitted that under the guise of sending Rs. 1,500/- towards royalty, the respondents have produced more than 1000 cassettes and the appellant is left without any remedy. Therefore, he stated that taking into consideration the fact that it is absolutely necessary for the respondent to obtain prior consent or assignment by a valid agreement. Section 52 (j) (i) & (ii) shall be read together to give a full meaning and object to the Act. According to him, only after compliance of Section 52 (j) (ii) r/w Rule 21, one has to wait for the licence or consent of the owner of the right in the work. It is absolutely necessary to mention here that under the original Act, the word 'and' was added after the words 'in the work' under Sub-clause (i) of Clause (j) of Section 52 and preceding Sub-clause (ii). However, by the amended Act of 38 of 1994 which came into effect from 10.5.95 the word 'and' has been deleted. From this it is abundantly clear that the legislature intended that these two provisions of law shall be read separately thereby giving a meaning to the effect that the exemption for infringement of copyright is made available either by sending records of that work is made by or with licence or consent of the owner of the right in the work or the person making sound recordings notice of his intention in compliance with Sub-clause (2) of Clause (j) of Section 52 which is re-produced. In consonance with this Section Rule 21 has been framed. From a perusal of Rule 21 it is clear to obtain consent or licence, a person shall comply with the necessary requirements of this rule. Therefore, it is dealing only with Clause (j) of Sub-section (1) of Section 52 and it does not refer to Sub-clause (j) of Section (ii) of Section 52. If the respondent were to take shelter under the Clause (j) in Sub-section(1) of Section 52, he has to wait till the consent or licence is given. The assignment of copyright can be obtained by written agreement as provided under Section 19. Licence or consent can be obtained under Section 30 of the Act. If the licence or consent is obtained under Section 30, naturally the licencee is exempted from proceeding against him for infringement of copyright. In the event such licence or consent is not given, even after compliance of the requirement of Section 52 (1) (j) (ii) within 15 days, I am of the opinion that the licence is deemed to have been granted and the person producing the cassette after the expiry of 15 days is not said to have infringed copyright. If Section 52 (j) (i) & (ii) arc read conjointly, Section 52 (j) (ii) becomes redundant and such narrow interpretation cannot be given to defeat the very object and purpose of Section 52 (1) (j) (ii). From a perusal of Rule 21 it is clear that it is framed so as to enable a person intending to make a sound recording to obtain consent or licence from the copyright owner by complying with the requirements of sending a notice of such intention to the owner of copyright and to the Registrar of Copyrights giving 15 days notice in defence of making the sound records and also paying the required amount and the rate of royalty is as fixed by the Copyright Code in this behalf. 8. The learned counsel for the appellant has vehemently argued that if the respondent is allowed to make recording without there being a licence or consent of the owner, the owner cannot proceed against the respondent even if he makes more than 1000 cassettes in each case, having paid Rs. 1,500/- only to safeguard the interest of the owner of the copyright, a provision is made enabling the copyright owner to examine the records maintained by the maker to find out as to whether he has produced more than what is allowed as per the royalty paid by him. It is not in dispute that the royalty is not a thing to be bargained as it is fixed by the copyright board with particulars of the inlay cards. Section 52 (j) (ii) does not require pre-requisite consent from the owner. The owner is entitled for royalty fixed and a notice of the intention of the respondent to make the cassettes. It is also necessary to mention that the intention of the respondent is not copying but making sound recording. Admittedly, the musician is different, singer is different, only the respondent is using the lyrics owned by the appellant. Section 52 (j) (ii) does not go into the question of negotiation thereby consent is not required. Section 52 (j) (i) recognises the right of copyright owner. The respondent has made an independent recording. The recording of respondent and also the appellant are different. Quality of sound recording is also different from each other. Section 20 gives the right to owner for 60 years which is subject to the provisions of Section 20 which deals with transmission of copyright in manuscript by testamentary its position. Section 14 (a) (iii) reads thus: "For purposes of this Act, "Copyright" 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:- (iii) to perform the work in public, or communicate it to the public;" As far as this case is concerned, the 3rd clause is relevant. Therefore, there is no dispute with regard to application of this provision but Section 14 is made subject to the provisions of this Act i.e. including the exception provided under Section 52 (j) (i). In this case, as indicated above, the respondent has complied with the requirement of Section 52 (j) (ii) and the refusal letter was received by the respondent only after a lapse of 15 days. Therefore, since the time of 15 days is mentioned in Rule 21, it has to be construed that there is a deemed provision of having given consent. Therefore, the Court below is right in holding that Sub-clauses (i) & (ii) of Section 52 (1) (j) shall be read disjunctively and not co-jointly. Therefore, the learned counsel for the respondent submitted that Section 52 (1) (j) (ii) is an exception to the general provisions of this Act. This argument according to me is well founded. 9. The learned counsel for the appellant further argued that from a perusal of the entire act that the right is given only to the copyright owner to go to Court either by filing a civil suit or the criminal case against the person who is infringing the copyright. This argument cannot be accepted. The respondent has complied with the requirement of Section 52 (ii) (j) and his right has to he protected and there is no prohibition in the Act prohibiting the respondent from filing the suit. The plaintiff/respondent only sought for injunction against the appellant from seizing the cassettes produced by him and naturally if these cassettes were seized as apprehended by the respondents, they will be without any remedy which is not the object of the Act. If the respondent satisfies the requirements of the relevant provisions of law, the same Act also provides a right to protect his interest. Therefore, this argument also is unsustainable. 10. The learned counsel has vehemently argued that the inaly cards furnished to the appellant and also produced in this case are misleading to the general public as they would be under the impression that it is the records produced by the appellant. This question has been examined by the learned Court below in greater detail. 11. The learned counsel for the respondents also brought to my notice that in the front side the name of the cassette is only mentioned with a picture of Lord Krishna printed. On the left side of the cover in the bottom in red colour the respondent has clearly stated that it is printed from original sound track. Further it is stated that the same is recorded as per the provisions of Section 52 (j). It is specifically stated 'not from original sound track'. The learned counsel further argued that the photo of the original singer also is shown which will misguide the public. That itself is not sufficient. G.V.Atri who is the singer of these songs with a lady singer Manjula Gururaj is also mentioned. Therefore, there is no possibility of the public mistaking it as the original recording. This is not seriously disputed by the appellant. (Paragraph 16). 12. The learned counsel for the appellant has also drawn my attention to the decision reported in The Gramophone Company of India Limited Versus Super Cassette Industries Lid. (1999 PTC 2 (Del) wherein it is held: "Three distinct copyright works are involved. These are literary works (lyrics), musical works and sound recordings (see: Clauses (Y), (O), (P) and (xx) of said Section. 2) Needless to repeat that in the aforesaid letter dt. 29th July, 1993 defendant has categorically acknowledged the copyright of the plaintiff in literary and musical works. Aforesaid Section 52 (1), (j) has to be read in harmony with the aforementioned provisions of the Act. Considering all these provisions together, I am not inclined to accept the said submission advanced on behalf of the defendant that on despatch of the cheque for Rs. 2,230/- towards royally which was indisputably returned by the plaintiff simultaneously intimating that it did not permit the defendant to make the version recording of their songs, the defendant automatically became entitled under Section 52 (1) (j) to make the sound recordings of the work of the plaintiff and the plaintiff is only entitled to statutory fee. I am also not inclined to agree with the other limb of the submission referred to above made on behalf of the defendant that there is no infringement of copyright within the meaning of Section 51 of the Act as the singers of the said work of the plaintiff and the defendant are different. Plaintiff has thus prima facie made out a strong case for issue of the ad interim injunction restraining the defendant from issuing any sound recordings which infringes the copyrights of the plaintiff. Obviously, balance of convenience in the matter is in favour of the plaintiff and it is the plaintiff v/ho is likely to suffer irreparable injury if the ad interim injunction to the above effect is not granted in its favour. Having arrived at this conclusion . For the foregoing discussion, defendant, its directors, partners, servants and agents are restrained from issuing any sound recordings of the audio cassette titled GANPATI AARTI ASHTVINAYAK GEETE which infringes the copyrights of the plaintiff till the disposal of the suit." From bogus@does.not.exist.com Mon Dec 10 11:52:20 2007 From: bogus@does.not.exist.com () Date: Mon, 10 Dec 2007 06:22:20 -0000 Subject: No subject Message-ID: Section 52 (j) (i) and (ii) were not considered in detail. From an examination of these two provisions as indicated above, it is clear that if action is taken under Section 52 (j) (ii) and the recording is done, it cannot be said that the copyright of the appellant is infringed. In addition to that before that Court it is clear that the design, colour scheme, get-up and layout of the defendant's audio cassette is deceptively and confusingly similar to that of the plaintiff. Further all the songs of the defendant's cassette appear in an identical sequence as they appear on the plaintiffs cassettes. Defendant has thus infringed the copyrights held by the plaintiff. 13. In similar circumstances, where the appellant and the defendants are the same, the same High Court in (1995 (1) Arbitration Law Reported 555) Gramophone Company Of India Ltd. v. Super Cassette Industries Ltd:1996 PTC 252 held that the unoffending alternate title must also contain underneath it a declaration in sufficiently bold letters that the record is not from the original sound track bout only a version record with voices of different artists. The word "not" should be underlined. This is a guideline issued by the Delhi High Court. As stated above, this guideline has also been followed by the respondents herein. Further, the Court also considered the question as to what is version recording. According to the Court version recording is a sound recording made of an already published song by using another voice or voices and with different musicians and arrangers. Version recording is thus neither copying nor reproduction of the original recording. 14. The learned counsel for the appellant further argued that he had already obtained a temporary injunction by filing a suit against the respondent and the Calcutta High Court was pleased to grant him injunction as sought for and if this injunction is not vacated, the appellant would be without any relief. It is for the appellant to take necessary steps to work out his remedy in accordance with law but the fact remains that certain rights are available to the respondent and it has to be protected by the Court in this suit. Therefore, the Court below has rightly come to the conclusion that the plaintiff has made out prima facie case and balance of convenience weighs in his favour. Further, the Court also has held that in the event injunction is not granted, irreparable injury would be caused to the respondent. Therefore, it is also to be noted that if any loss is caused to the appellant, he is entitled to recover damage in accordance with law. 15. The learned counsel for the appellant submitted that the matter is pending before the Supreme Court. Be that as it may, the fact remains that from the Judgment of the Court below it is clear that the Court has considered all aspects of the matter and according to me arrived at a right conclusion. But the fact which remains to be considered is the apprehension that the respondent is producing cassettes more than the permissible limit and the appellant is not in a position to have control over the same. This contention cannot be gone into as the Act has provided the necessary remedies to the appellant and it is for him to work out his remedies. 16. Therefore, it is clear that the order of the learned Court below is neither arbitrary, injudicious, capricious nor prohibited under any law. It is also settled law that even if the Appellate Court can come to a different conclusion than from the one arrived at by the Court below, normally the Appellate Court cannot interfere. Such being the position of law, I hold that the appeal has no merit and accordingly it is dismissed. No order as to costs. Print this page || Email this page � manupatra.com Pvt. Ltd. __________________________________ Do you Yahoo!? Yahoo! SiteBuilder - Free, easy-to-use web site design software http://sitebuilder.yahoo.com From prashantiyengar at gmail.com Wed Dec 5 11:37:15 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Wed, 5 Dec 2007 11:37:15 +0530 Subject: [Commons-Law] Net cos helping banned drug sales guilty: SC Message-ID: <908adbd0712042207q49e87b5ay45a7fae2130ff78f@mail.gmail.com> Net cos helping banned drug sales guilty: SC BUSY DAY FOR PHARMA SECTOR BS Reporter / New Delhi December 5, 2007 The Supreme Court today said an Internet service provider could be held guilty under the narcotics control law if its network was used to distribute banned drugs in the country and abroad. The network providers could not be treated merely as "innocent intermediaries" under the Information Technology Act, the apex court said. The immunity provided by the Act from prosecution referred only to offences under that law but did not extend to nefarious trade, a Bench headed by Justice S B Sinha said. In this case, Sanjay Kedia set up two companies, Xponse Technologies Ltd and Xponse Services Pvt Ltd, two years ago. The narcotics bureau raided the companies' premises but did not find any banned substance. However, Kedia was arrested on electronic evidence. His application for bail was rejected by the special court and the high court. He then moved to the Supreme Court. Without commenting on the facts of the case, the Supreme Court cited the report of the narcotics bureau that Sanjay designed, developed and hosted a pharmaceutical website and was using it to distribute huge quantities of drugs in the US from Kolkata. In view of the "overwhelming inculpatory evidence", the court refused bail. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071205/404c2eaf/attachment.html From prashantiyengar at gmail.com Wed Dec 5 11:43:44 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Wed, 5 Dec 2007 11:43:44 +0530 Subject: [Commons-Law] Net cos helping banned drug sales guilty: SC Message-ID: <908adbd0712042213h33a71967jf81bd4af47170da2@mail.gmail.com> Text of the judgment may be viewed here: http://openarchive.in/newcases/29956.htm -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071205/b27e8414/attachment.html From paivakil at yahoo.co.in Wed Dec 5 18:01:15 2007 From: paivakil at yahoo.co.in (Mahesh T. Pai) Date: Wed, 5 Dec 2007 18:01:15 +0530 Subject: [Commons-Law] Net cos helping banned drug sales guilty: SC In-Reply-To: <908adbd0712042207q49e87b5ay45a7fae2130ff78f@mail.gmail.com> References: <908adbd0712042207q49e87b5ay45a7fae2130ff78f@mail.gmail.com> Message-ID: <20071205123115.GA2417@nandini.home> I hope it is not just me. On going through the judgment, I feel that there is no justification for use of the term "Net cos" in the subject line. Findings of the investigating agencies that the accused are actually owners of the delinquent sites. The argument was something like this:- accused: m'lord, we are only intermediaries; we have no knowledge of what is being hosted on the sites. Court: No; according to the investigating agencies, you are the owners and you have entrusted ISP's to host the sites on your behalf; you are the people responsible for the contents. In other words, the court held that the accused are not an ISP (Net cos as used in the subject line); there is nothing in the judgment to warrant a conclusion that ISPs and web service providers are liable for criminal activities of their clients. Also, remember that this case is arising from bail applications moved by the accused pending investigation. Trial has not commenced and the court has made it clear that the observations may be revisited at the trial. (see the final para). Prashant Iyengar said on Wed, Dec 05, 2007 at 11:37:15AM +0530,: > The Supreme Court today said an Internet service provider could be > held guilty under the narcotics control law if its network was used > to distribute banned drugs in the country and abroad. The network > providers could not be -- Mahesh T. Pai <<>> http://paivakil.blogspot.com/ Learn from the mistakes of others. You won't live long enough to make all of them yourself. From prashantiyengar at gmail.com Wed Dec 5 18:10:16 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Wed, 5 Dec 2007 18:10:16 +0530 Subject: [Commons-Law] Net cos helping banned drug sales guilty: SC In-Reply-To: <20071205123115.GA2417@nandini.home> References: <908adbd0712042207q49e87b5ay45a7fae2130ff78f@mail.gmail.com> <20071205123115.GA2417@nandini.home> Message-ID: <908adbd0712050440w686dc907nedae4def408c2907@mail.gmail.com> Hi Mahesh, You're right. The error is apparent to anyone who'd care to read the judgment.. which is why I try to forward texts along with news. Business Standard and The Hindu of course have their own ways of interpreting news in misleading ways in their headings. :) Regards, Prashant On Dec 5, 2007 6:01 PM, Mahesh T. Pai wrote: > I hope it is not just me. > > On going through the judgment, I feel that there is no justification > for use of the term "Net cos" in the subject line. > > Findings of the investigating agencies that the accused are actually > owners of the delinquent sites. > > The argument was something like this:- > > accused: m'lord, we are only intermediaries; we have no knowledge of > what is being hosted on the sites. > > Court: No; according to the investigating agencies, you are the owners > and you have entrusted ISP's to host the sites on your behalf; > you are the people responsible for the contents. > > In other words, the court held that the accused are not an ISP (Net > cos as used in the subject line); there is nothing in the judgment to > warrant a conclusion that ISPs and web service providers are liable > for criminal activities of their clients. > > Also, remember that this case is arising from bail applications moved > by the accused pending investigation. Trial has not commenced and the > court has made it clear that the observations may be revisited at the > trial. (see the final para). > > Prashant Iyengar said on Wed, Dec 05, 2007 at 11:37:15AM +0530,: > > > The Supreme Court today said an Internet service provider could be > > held guilty under the narcotics control law if its network was used > > to distribute banned drugs in the country and abroad. The network > > providers could not be > > > -- > Mahesh T. Pai <<>> http://paivakil.blogspot.com/ > Learn from the mistakes of others. > You won't live long enough to make all of them yourself. > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071205/de0ee471/attachment.html From neelabadami at gmail.com Wed Dec 5 20:08:34 2007 From: neelabadami at gmail.com (Neela Badami) Date: Wed, 5 Dec 2007 09:38:34 -0500 Subject: [Commons-Law] Net cos helping banned drug sales guilty: SC In-Reply-To: <908adbd0712050440w686dc907nedae4def408c2907@mail.gmail.com> References: <908adbd0712042207q49e87b5ay45a7fae2130ff78f@mail.gmail.com> <20071205123115.GA2417@nandini.home> <908adbd0712050440w686dc907nedae4def408c2907@mail.gmail.com> Message-ID: <809df90c0712050638kc04b89asa2abd4e5f82907a3@mail.gmail.com> Not strictly related, but the analogy struck me: http://www.business-standard.com/common/storypage_c.php?leftnm=10&autono=306541 On Dec 5, 2007 7:40 AM, Prashant Iyengar wrote: > Hi Mahesh, > You're right. The error is apparent to anyone who'd care to read the > judgment.. which is why I try to forward texts along with news. Business > Standard and The Hindu of course have their own ways of interpreting news in > misleading ways in their headings. :) > Regards, > Prashant > > > On Dec 5, 2007 6:01 PM, Mahesh T. Pai wrote: > > > I hope it is not just me. > > > > On going through the judgment, I feel that there is no justification > > for use of the term "Net cos" in the subject line. > > > > Findings of the investigating agencies that the accused are actually > > owners of the delinquent sites. > > > > The argument was something like this:- > > > > accused: m'lord, we are only intermediaries; we have no knowledge of > > what is being hosted on the sites. > > > > Court: No; according to the investigating agencies, you are the owners > > and you have entrusted ISP's to host the sites on your behalf; > > you are the people responsible for the contents. > > > > In other words, the court held that the accused are not an ISP (Net > > cos as used in the subject line); there is nothing in the judgment to > > warrant a conclusion that ISPs and web service providers are liable > > for criminal activities of their clients. > > > > Also, remember that this case is arising from bail applications moved > > by the accused pending investigation. Trial has not commenced and the > > court has made it clear that the observations may be revisited at the > > trial. (see the final para). > > > > Prashant Iyengar said on Wed, Dec 05, 2007 at 11:37:15AM +0530,: > > > > > > > The Supreme Court today said an Internet service provider could be > > > held guilty under the narcotics control law if its network was used > > > to distribute banned drugs in the country and abroad. The network > > > providers could not be > > > > > > -- > > Mahesh T. Pai <<>> http://paivakil.blogspot.com/ > > Learn from the mistakes of others. > > You won't live long enough to make all of them yourself. > > _______________________________________________ > > commons-law mailing list > > commons-law at sarai.net > > https://mail.sarai.net/mailman/listinfo/commons-law > > > > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > > -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071205/ce145b87/attachment.html From lawrence at altlawforum.org Thu Dec 6 13:56:04 2007 From: lawrence at altlawforum.org (Lawrence Liang) Date: Thu, 06 Dec 2007 13:56:04 +0530 Subject: [Commons-Law] [Savage use of copyright to stop criticism of attacks on Muslims] Message-ID: <4757B21C.4020909@altlawforum.org> -------------- next part -------------- An embedded message was scrubbed... From: James Love Subject: [A2k] Savage use of copyright to stop criticism of attacks on Muslims Date: Mon, 03 Dec 2007 16:46:49 -0500 Size: 6924 Url: http://mail.sarai.net/pipermail/commons-law/attachments/20071206/96a0a52b/attachment.eml From prashantiyengar at gmail.com Fri Dec 7 11:06:27 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Fri, 7 Dec 2007 11:06:27 +0530 Subject: [Commons-Law] Computer (Linux) problems irk court staff Message-ID: <908adbd0712062136l4b7efdc6me89a1cef7a826ad3@mail.gmail.com> *http://www.thehindu.com/2007/12/07/stories/2007120758350300.htm* ------------------------------ [image: ICICI Bank] Tamil Nadu - Madurai * Computer problems irk court staff * Mohamed Imranullah S. * Order copies not issued on time due to printing delays * MADURAI: The Madras High Court Bench here is facing technical problems ever since the Electronics Corporation of Tamil Nadu (ELCOT) allotted 102 new Linux based personal computers four months ago. Installing the new operating system without imparting basic training to the users has put the Judges, their personal assistants and other court staff in a tight spot as they are unable to issue order copies on time much to the dissatisfaction of the lawyers. "Our staff members are used to Microsoft Windows. With the new systems, they often complain of documents not getting aligned properly, lack of inbuilt dictionary and inconsistencies in transmitting the judgements to the Current Section where the orders are printed," said a court employee attached to the National Informatics Centre (NIC). The dot matrix printers provided to the personal assistants as well as the line matrix printers in the Current Section are very slow. The court requires high end printers that can print 1500 to 2000 lines per minute. The Judges, their law clerks and personal assistants could not also access the Supreme Court Cases Online, a software that runs only on Windows XP or Vista. The Registry has sent three communications to ELCOT on the issue on November 14, October 12 and October 26. The authorities have been asked to provide Windows-enabled PCs or upgrade Linux to meet the day to day requirements. F.M. Ibrahim Kalifulla, seniormost Judge in the Bench, has directed the Registry to send yet another communication. * * (c) Copyright 2000 - 2007 The Hindu -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071207/ec55f98f/attachment.html From prashantiyengar at gmail.com Wed Dec 5 11:37:24 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Wed, 05 Dec 2007 06:07:24 -0000 Subject: [Commons-Law] Net cos helping banned drug sales guilty: SC Message-ID: <908adbd0712042207q49e87b5ay45a7fae2130ff78f@mail.gmail.com> Net cos helping banned drug sales guilty: SC BUSY DAY FOR PHARMA SECTOR BS Reporter / New Delhi December 5, 2007 The Supreme Court today said an Internet service provider could be held guilty under the narcotics control law if its network was used to distribute banned drugs in the country and abroad. The network providers could not be treated merely as "innocent intermediaries" under the Information Technology Act, the apex court said. The immunity provided by the Act from prosecution referred only to offences under that law but did not extend to nefarious trade, a Bench headed by Justice S B Sinha said. In this case, Sanjay Kedia set up two companies, Xponse Technologies Ltd and Xponse Services Pvt Ltd, two years ago. The narcotics bureau raided the companies' premises but did not find any banned substance. However, Kedia was arrested on electronic evidence. His application for bail was rejected by the special court and the high court. He then moved to the Supreme Court. Without commenting on the facts of the case, the Supreme Court cited the report of the narcotics bureau that Sanjay designed, developed and hosted a pharmaceutical website and was using it to distribute huge quantities of drugs in the US from Kolkata. In view of the "overwhelming inculpatory evidence", the court refused bail. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071205/404c2eaf/attachment-0001.html From prashantiyengar at gmail.com Wed Dec 5 11:43:53 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Wed, 05 Dec 2007 06:13:53 -0000 Subject: [Commons-Law] Net cos helping banned drug sales guilty: SC Message-ID: <908adbd0712042213h33a71967jf81bd4af47170da2@mail.gmail.com> Text of the judgment may be viewed here: http://openarchive.in/newcases/29956.htm -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071205/b27e8414/attachment-0001.html From paivakil at yahoo.co.in Wed Dec 5 18:01:51 2007 From: paivakil at yahoo.co.in (Mahesh T. Pai) Date: Wed, 05 Dec 2007 12:31:51 -0000 Subject: [Commons-Law] Net cos helping banned drug sales guilty: SC In-Reply-To: <908adbd0712042207q49e87b5ay45a7fae2130ff78f@mail.gmail.com> References: <908adbd0712042207q49e87b5ay45a7fae2130ff78f@mail.gmail.com> Message-ID: <20071205123115.GA2417@nandini.home> I hope it is not just me. On going through the judgment, I feel that there is no justification for use of the term "Net cos" in the subject line. Findings of the investigating agencies that the accused are actually owners of the delinquent sites. The argument was something like this:- accused: m'lord, we are only intermediaries; we have no knowledge of what is being hosted on the sites. Court: No; according to the investigating agencies, you are the owners and you have entrusted ISP's to host the sites on your behalf; you are the people responsible for the contents. In other words, the court held that the accused are not an ISP (Net cos as used in the subject line); there is nothing in the judgment to warrant a conclusion that ISPs and web service providers are liable for criminal activities of their clients. Also, remember that this case is arising from bail applications moved by the accused pending investigation. Trial has not commenced and the court has made it clear that the observations may be revisited at the trial. (see the final para). Prashant Iyengar said on Wed, Dec 05, 2007 at 11:37:15AM +0530,: > The Supreme Court today said an Internet service provider could be > held guilty under the narcotics control law if its network was used > to distribute banned drugs in the country and abroad. The network > providers could not be -- Mahesh T. Pai <<>> http://paivakil.blogspot.com/ Learn from the mistakes of others. You won't live long enough to make all of them yourself. From prashantiyengar at gmail.com Wed Dec 5 18:10:27 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Wed, 05 Dec 2007 12:40:27 -0000 Subject: [Commons-Law] Net cos helping banned drug sales guilty: SC In-Reply-To: <20071205123115.GA2417@nandini.home> References: <908adbd0712042207q49e87b5ay45a7fae2130ff78f@mail.gmail.com> <20071205123115.GA2417@nandini.home> Message-ID: <908adbd0712050440w686dc907nedae4def408c2907@mail.gmail.com> Hi Mahesh, You're right. The error is apparent to anyone who'd care to read the judgment.. which is why I try to forward texts along with news. Business Standard and The Hindu of course have their own ways of interpreting news in misleading ways in their headings. :) Regards, Prashant On Dec 5, 2007 6:01 PM, Mahesh T. Pai wrote: > I hope it is not just me. > > On going through the judgment, I feel that there is no justification > for use of the term "Net cos" in the subject line. > > Findings of the investigating agencies that the accused are actually > owners of the delinquent sites. > > The argument was something like this:- > > accused: m'lord, we are only intermediaries; we have no knowledge of > what is being hosted on the sites. > > Court: No; according to the investigating agencies, you are the owners > and you have entrusted ISP's to host the sites on your behalf; > you are the people responsible for the contents. > > In other words, the court held that the accused are not an ISP (Net > cos as used in the subject line); there is nothing in the judgment to > warrant a conclusion that ISPs and web service providers are liable > for criminal activities of their clients. > > Also, remember that this case is arising from bail applications moved > by the accused pending investigation. Trial has not commenced and the > court has made it clear that the observations may be revisited at the > trial. (see the final para). > > Prashant Iyengar said on Wed, Dec 05, 2007 at 11:37:15AM +0530,: > > > The Supreme Court today said an Internet service provider could be > > held guilty under the narcotics control law if its network was used > > to distribute banned drugs in the country and abroad. The network > > providers could not be > > > -- > Mahesh T. Pai <<>> http://paivakil.blogspot.com/ > Learn from the mistakes of others. > You won't live long enough to make all of them yourself. > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071205/de0ee471/attachment-0001.html From neelabadami at gmail.com Wed Dec 5 20:08:40 2007 From: neelabadami at gmail.com (Neela Badami) Date: Wed, 05 Dec 2007 14:38:40 -0000 Subject: [Commons-Law] Net cos helping banned drug sales guilty: SC In-Reply-To: <908adbd0712050440w686dc907nedae4def408c2907@mail.gmail.com> References: <908adbd0712042207q49e87b5ay45a7fae2130ff78f@mail.gmail.com> <20071205123115.GA2417@nandini.home> <908adbd0712050440w686dc907nedae4def408c2907@mail.gmail.com> Message-ID: <809df90c0712050638kc04b89asa2abd4e5f82907a3@mail.gmail.com> Not strictly related, but the analogy struck me: http://www.business-standard.com/common/storypage_c.php?leftnm=10&autono=306541 On Dec 5, 2007 7:40 AM, Prashant Iyengar wrote: > Hi Mahesh, > You're right. The error is apparent to anyone who'd care to read the > judgment.. which is why I try to forward texts along with news. Business > Standard and The Hindu of course have their own ways of interpreting news in > misleading ways in their headings. :) > Regards, > Prashant > > > On Dec 5, 2007 6:01 PM, Mahesh T. Pai wrote: > > > I hope it is not just me. > > > > On going through the judgment, I feel that there is no justification > > for use of the term "Net cos" in the subject line. > > > > Findings of the investigating agencies that the accused are actually > > owners of the delinquent sites. > > > > The argument was something like this:- > > > > accused: m'lord, we are only intermediaries; we have no knowledge of > > what is being hosted on the sites. > > > > Court: No; according to the investigating agencies, you are the owners > > and you have entrusted ISP's to host the sites on your behalf; > > you are the people responsible for the contents. > > > > In other words, the court held that the accused are not an ISP (Net > > cos as used in the subject line); there is nothing in the judgment to > > warrant a conclusion that ISPs and web service providers are liable > > for criminal activities of their clients. > > > > Also, remember that this case is arising from bail applications moved > > by the accused pending investigation. Trial has not commenced and the > > court has made it clear that the observations may be revisited at the > > trial. (see the final para). > > > > Prashant Iyengar said on Wed, Dec 05, 2007 at 11:37:15AM +0530,: > > > > > > > The Supreme Court today said an Internet service provider could be > > > held guilty under the narcotics control law if its network was used > > > to distribute banned drugs in the country and abroad. The network > > > providers could not be > > > > > > -- > > Mahesh T. Pai <<>> http://paivakil.blogspot.com/ > > Learn from the mistakes of others. > > You won't live long enough to make all of them yourself. > > _______________________________________________ > > commons-law mailing list > > commons-law at sarai.net > > https://mail.sarai.net/mailman/listinfo/commons-law > > > > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > > -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071205/ce145b87/attachment-0001.html From lawrence at altlawforum.org Thu Dec 6 13:56:36 2007 From: lawrence at altlawforum.org (Lawrence Liang) Date: Thu, 06 Dec 2007 08:26:36 -0000 Subject: [Commons-Law] [Savage use of copyright to stop criticism of attacks on Muslims] Message-ID: <4757B21C.4020909@altlawforum.org> -------------- next part -------------- An embedded message was scrubbed... From: James Love Subject: [A2k] Savage use of copyright to stop criticism of attacks on Muslims Date: Mon, 03 Dec 2007 16:46:49 -0500 Size: 6924 Url: http://mail.sarai.net/pipermail/commons-law/attachments/20071206/96a0a52b/attachment-0001.eml From prashantiyengar at gmail.com Fri Dec 7 11:06:36 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Fri, 07 Dec 2007 05:36:36 -0000 Subject: [Commons-Law] Computer (Linux) problems irk court staff Message-ID: <908adbd0712062136l4b7efdc6me89a1cef7a826ad3@mail.gmail.com> *http://www.thehindu.com/2007/12/07/stories/2007120758350300.htm* ------------------------------ [image: ICICI Bank] Tamil Nadu - Madurai * Computer problems irk court staff * Mohamed Imranullah S. * Order copies not issued on time due to printing delays * MADURAI: The Madras High Court Bench here is facing technical problems ever since the Electronics Corporation of Tamil Nadu (ELCOT) allotted 102 new Linux based personal computers four months ago. Installing the new operating system without imparting basic training to the users has put the Judges, their personal assistants and other court staff in a tight spot as they are unable to issue order copies on time much to the dissatisfaction of the lawyers. "Our staff members are used to Microsoft Windows. With the new systems, they often complain of documents not getting aligned properly, lack of inbuilt dictionary and inconsistencies in transmitting the judgements to the Current Section where the orders are printed," said a court employee attached to the National Informatics Centre (NIC). The dot matrix printers provided to the personal assistants as well as the line matrix printers in the Current Section are very slow. The court requires high end printers that can print 1500 to 2000 lines per minute. The Judges, their law clerks and personal assistants could not also access the Supreme Court Cases Online, a software that runs only on Windows XP or Vista. The Registry has sent three communications to ELCOT on the issue on November 14, October 12 and October 26. The authorities have been asked to provide Windows-enabled PCs or upgrade Linux to meet the day to day requirements. F.M. Ibrahim Kalifulla, seniormost Judge in the Bench, has directed the Registry to send yet another communication. * * (c) Copyright 2000 - 2007 The Hindu -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071207/ec55f98f/attachment-0002.html From prashantiyengar at gmail.com Tue Dec 11 12:41:36 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Tue, 11 Dec 2007 07:11:36 -0000 Subject: [Commons-Law] Secy panel exempts taxmen from RTI but keeps Army waiting Message-ID: <908adbd0712102311jb58f8b5v1d4927ea22677b66@mail.gmail.com> *Secy panel exempts taxmen from RTI but keeps Army waiting* ** AMITAV RANJAN *Posted online: Tuesday, December 11, 2007 at 0000 hrs IST * New Delhi, December 10 Only two intelligence units have been given immunity from public disclosure under the Right to Information Act. Seven others — including the Defence Ministry, the armed forces and the Central Bureau of Investigation (CBI) — have failed to make the grade for the second time. On November 23, the Committee of Secretaries included in the Second Schedule the Directorate General of Income Tax Investigation "given the nature of their surveillance activity" and the National Technical Research Organisation (NTRO) as it had "access to information of a sensitive nature from a large number of intelligence agencies". But it declined blanket exemption from RTI to the armed forces or the Defence Ministry "for the present" asking the latter to submit specific proposals in respect of intelligence organisations, if necessary, that should be in the schedule that lists RTI-exempted outfits. Even the National Security Council has not been given the reprieve from inclusion in the Schedule. Last year, the Administrative Reforms Commission had favoured including the armed forces in the list claiming that almost all of its activities were covered in Section 8 where an office is under no obligation to give information if it dented security, sovereignty and integrity of India or the country's strategic interest. Rejecting requests from the Railway Protection Force and Directorate General of Central Excise Intelligence, the CoS decided to exclude the crime branch or the special branch of police. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071211/6a0fd993/attachment-0001.html From prashantiyengar at gmail.com Thu Dec 13 12:57:19 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Thu, 13 Dec 2007 07:27:19 -0000 Subject: [Commons-Law] Cos to get back patent fees Message-ID: <908adbd0712122327n4a1751fi3d9be917c4d9558e@mail.gmail.com> http://www.business-standard.com/common/storypage_c.php?leftnm=10&autono=307401 Cos to get back patent fees Ishita Russell / New Delhi December 13, 2007 In an move to promote innovation among emerging companies, the Department of Information Technology has launched its programme entitled, "Support International Patent Protection in Electronics & IT (SIP-EIT)". Under the scheme, small and medium enterprises (SMEs) and technology start-ups can apply for reimbursement, up to a limit of Rs 15 lakh, for the costs incurred in filing international patent applications. This scheme applies for their indigenous inventions in the electronics and information, communication and technology (ICT) domain. The grant will be disbursed to applicants on a reimbursement basis and will be limited to 50 per cent of the total expenses in actual cost incurred by the applicant on filing international patent. Under the new scheme, patent processing costs including attorneys' fees, patent office filing fees, examination fees, patent search cost, additional cost for entering national phase upto grant/issue, will be covered to an extent of Rs 15 lakh or 50 per cent of the total expenses incurred on filing each invention, whichever is less. Subsequently after the grant, the cost will be borne by the industry. "There has been a long-standing demand for such a scheme and various industry associations have been lobbying with us for the same," said an official of the department of information and technology. The scheme, which was introduced on 4 November, will be valid for a period of five years. Beyond the allotted time-frame, the scheme will be reviewed for extension, said the official. To avail of the benefits of the scheme, the company is required to be a registered Indian micro, small or medium enterprise engaged in manufacture or production of goods, where the investment in plant and machinery does not exceed Rs 10 crore. Meanwhile, for enterprises involved in providing or rendering of services, the scheme will be restricted to enterprises where the investment in plant and machinery does not exceed Rs 5 crore. Companies with an in-house R&D certification by Department for Scientific & Industrial Research( DSIR) or Technology Incubation enterprises registered as companies with support under some government scheme, are also entitled to avail the benefits. "The scheme is at a very initial stage, so, it is difficult to judge the success of the programme. We have received a few applications till date, which will take about a month to process. We are optimistic about the response we will receive in the future," the official said. "The scheme is being extensively promoted by industry bodies," he said adding, "The ministry will start advertising for this scheme soon." A committee comprising government officials and members of the industry has been set up to monitor the process approval of the applicants. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071213/a679fb70/attachment-0001.html From prashantiyengar at gmail.com Wed Dec 19 13:25:33 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Wed, 19 Dec 2007 07:55:33 -0000 Subject: [Commons-Law] India gets International Searching Authority status (WIPO) Message-ID: <908adbd0712182355m6f4d17e8m6087954963f733b0@mail.gmail.com> * India gets ISA status * Staff Reporter * WIPO's recognition puts the country in a coveted league * ------------------------------ * Retains second place in A.T. Kearney's FDI Confidence Index Kamal Nath asks entrepreneurs to focus on brand building * ------------------------------ PHOTO: V. SUDERSHAN * PATENT RECOGNITION: Union Minister for Commerce and Industry Kamal Nath (right) with Minister of State for Commerce and Industry Ashwini Kumar addressing a press conference in New Delhi on Tuesday. * NEW DELHI: Union Commerce and Industry Minister on Tuesday said the 170-plus member States of the World Intellectual Property Organization (WIPO) have endorsed India's recognition as an International Searching Authority (ISA) and an International Preliminary Examining Authority (IPEA). He also informed that India had retained the second place in A.T. Kearney's 2007 Foreign Direct Investment Confidence Index. Stating that this has been possible due to the Centre's efforts in modernising India's intellectual property systems as well as infusing transparency and openness in the system, Mr. Kamal Nath told reporters: "The recognition of India as an ISA and IPEA puts India in a coveted league of only 15 nations and organisations which are currently recognised at a global level."The status of ISA and IPEA would be beneficial for India in several ways. Apart from the international recognition , it would generate revenues in the form of fees that would be provided for functioning as an ISA and IPEA. Being the only English-speaking nation in the Asian region to be recognised as an ISA and IPEA would mean that several international applications received by WIPO under the Patents Cooperation Treaty would be sent to the Indian Patent Offices for search and preliminary examination purposes, he informed. Meanwhile, addressing an export awards function, organised by the Sports Goods Export Promotion Council (SGEPC), here, Mr. Kamal Nath called on the entrepreneurs in the sports goods export industry to focus on brand building, as this is an area which is an important ingredient in the value of the product. He also urged the industry leaders to achieve maximum mileage from the Commonwealth Games-2010 and work hard for cultivating global standards. "The government on its part will ensure full support for the facilitation of further growth and development of this sector," he said. * * (c) Copyright 2000 - 2007 The Hindu -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071219/5c678e97/attachment-0001.html From prashantiyengar at gmail.com Thu Dec 20 10:33:59 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Thu, 20 Dec 2007 05:03:59 -0000 Subject: [Commons-Law] At 71, physics professor is a web star Message-ID: <908adbd0712192103j8e18d57vf313371b3c7e988d@mail.gmail.com> *http://www.indianexpress.com/printerFriendly/252335.html * *At 71, physics professor is a web star* ** New York Times *Posted online: Thursday, December 20, 2007 at 0000 hrs IST * CAMBRIDGE, DECEMBER 19 Walter H G Lewin, 71, a physics professor, has long had a cult following at the Massachusetts Institute of Technology (MIT). And he has now emerged as an international Internet guru, thanks to the global classroom the institute created to spread knowledge through cyberspace. Professor Lewin's videotaped physics lectures, free online on the OpenCourseWare of MIT, have won him devotees across the country and beyond who stuff his e-mail in-box with praise. "Through your inspiring video lectures I have managed to see just how beautiful physics is, both astounding and simple," a 17-year-old from India e-mailed recently. Steve Boigon, 62, a florist from San Diego, wrote: "I walk with a new spring in my step and I look at life through physics-coloured eyes." Professor Lewin delivers his lectures with the panache of Julia Child bringing French cooking to amateurs and the zany theatricality of YouTube's greatest hits. He is part of a new generation of academic stars who hold forth in cyberspace on their college websites and even on iTunes U. In his lectures at ocw.mit.edu, Professor Lewin beats a student with cat fur to demonstrate electrostatics. Wearing shorts, sandals with socks and a pith helmet, he fires a cannon loaded with a golf ball at a stuffed monkey, wearing a bulletproof vest to demonstrate the trajectories of objects in free fall. He rides a fire-extinguisher-propelled tricycle across his classroom to show how a rocket lifts off. He was No 1 on the most downloaded list at iTunes U for a while. MIT recently expanded its online classes by opening a site aimed at high school students and teachers. Judging from his fan e-mail, Professor Lewin, who is among those featured on the new site, appeals to students of all ages. Some of his correspondents compare him to Richard Feynman, the free-spirited,a Nobel laureate who popularised physics through his books, lectures and television appearances. With his wiry grayish-brown hair, his tortoiseshell glasses and his intensity, Professor Lewin is the iconic brilliant scientist. "We have here the mother of all pendulums!" he declares, hoisting his 6-foot-2, 170-pound self on a 30-pound steel ball attached to a pendulum hanging from the ceiling. He swings across the stage. The point: that a period of a pendulum is independent of the mass — the steel ball, plus one professor — hanging from it. "Physics works!" Professor Lewin shouts, as the classroom explodes in cheers. A fan who said he was a physics teacher from Iraq gushed: "You are now my Scientific Father. In spite of the bad occupation and war against Iraq, you made me love the US because you are there and MIT is there." Fun matters. Chasing rainbows hooked Boigon. He was vacationing in Hawaii when he noticed the rainbow outside his hotel. Why were the colours always in the same order? When he returned home, Boigon Googled rainbows. Within moments, he was whisked to MIT. "All of you have looked at rainbows," he begins. "But very few of you have ever seen one. Seeing is different than looking. Today we are going to see a rainbow." He explains how the colours always appear in the same order because of how light refracts and reflects in the water droplets. For the finale, he creates a rainbow by shining a bright light into a glass sphere containing a single drop of water. "There it is!" he cries. "Your life will never be the same," he tells his students. "Because of your knowledge, you will be able to see way more than just the beauty of the bows that everyone else can see." -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071220/07c995f4/attachment-0001.html From anirudhsbh at gmail.com Wed Dec 26 10:31:41 2007 From: anirudhsbh at gmail.com (Anirudh) Date: Wed, 26 Dec 2007 05:01:41 -0000 Subject: [Commons-Law] Egypt to Copyright Antiquities In-Reply-To: References: Message-ID: Another stab at Commons Culture? ----- http://news.bbc.co.uk/2/hi/middle_east/7160057.stm ----- * Egypt 'to copyright antiquities' *Egypt's MPs are expected to pass a law requiring royalties be paid whenever copies are made of museum pieces or ancient monuments such as the pyramids. Zahi Hawass, who chairs Egypt's Supreme Council of Antiquities, told the BBC the law would apply in all countries. The money was needed to maintain thousands of pharaonic sites, he said. Correspondents say the law will deal a blow to themed resorts across the world where large-scale copies of Egyptian artefacts are a crowd-puller. Mr Hawass said the law would apply to full-scale replicas of any object in any museum in Egypt. "Commercial use" of ancient monuments like the pyramids or the sphinx would also be controlled, he said. "Even if it is for private use, they must have permission from the Egyptian government," he added. But he said the law would not stop local and international artists reproducing monuments as long as they were not exact replicas. The Luxor hotel in the US city of Las Vegas would also not be affected because it was not an exact copy of a pyramid and its interior was completely different, Mr Hawass told AFP news agency. But he said claims by the hotel that it was "the only pyramid-shaped building in the world" could no longer be made. The announcement came two days after an Egyptian newspaper called on the hotel to pay a share of its profits to the central Egyptian city of Luxor, which administers the ancient Valley of the Kings burial site. ------ (c) BBC News Ltd. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071226/3e34c7c5/attachment-0001.html From prashantiyengar at gmail.com Wed Dec 26 11:46:33 2007 From: prashantiyengar at gmail.com (Prashant Iyengar) Date: Wed, 26 Dec 2007 06:16:33 -0000 Subject: [Commons-Law] Tune in to campus e-radio from anywhere Message-ID: <908adbd0712252216j61815235sfacd310d8ceb10c7@mail.gmail.com> *http://www.thehindu.com/2007/12/21/stories/2007122154800600.htm* ------------------------------ [image: ICICI Bank] Kerala * Tune in to campus e-radio from anywhere * George Jacob Kottayam: The pioneer student Internet radio in the country will go online when Baselius College here launches its e-radio www.baselian.org on January 2. Says Jolly P. Joy, the coordinator of the project: "This will be operated completely by students and we have already put in place a team of 30 students to handle the various departments. We also have the necessary infrastructure facilities to commence operations," he said. To begin with, they would use the File Transfer Protocol (FTP) to upload the clippings so that it could be downloaded as 'background sound.' "However, after two months, from March 1, we will be able to go on air, live using audio stream facility," he said. The campus radio, operated by the Human Resource Development and Training (HRD&T) Centre at the college, had its origin when the students and faculty members decided to take the cue from the highly successful e-radio experiment run by the Aberdeen University Students' Association of the U.K. This will not be only an IT chain linking the various educational institutions in the State, but a medium with global reach, said Mr. Joy. Anyone with a broadband connection will be able to listen to www.baselian.or from January 2, from any corner of the world. * * (c) Copyright 2000 - 2007 The Hindu -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071226/f99d577e/attachment-0001.html From rus.cahimb at gmail.com Fri Dec 28 16:00:03 2007 From: rus.cahimb at gmail.com (Ramanathan Muthaiah) Date: Fri, 28 Dec 2007 10:30:03 -0000 Subject: [Commons-Law] : Circus & Photography Message-ID: Recently, we went to the circus event happening in Bangalore. Most striking thing, when I entered the actual place inside the big tent erected opposite to the TV tower, is this notice claiming that "PHOTOGRAPHY IS PROHIBITED". Though to some extent, I could understand the need for such notice, but it is not clear to me what could be the possible reasons for this. Could some competing circus agencies copy their acrobatics, event shows, etc? Any ideas ??? /Ram From lawrence at altlawforum.org Fri Dec 28 16:21:02 2007 From: lawrence at altlawforum.org (Lawrence Liang) Date: Fri, 28 Dec 2007 10:51:02 -0000 Subject: [Commons-Law] : Circus & Photography In-Reply-To: References: Message-ID: <4774D4CE.5050108@gmail.com> Hi Ram While I am not sure of the motivation in this case, i would imagine that it is rather understandable; If I am a performer, i would hate it if people just kept taking my photographs ( not to mention the possibility that the flashing lights could be dangerous in a situation when acrobats need to concentrate, or perhaps the lions are not very fond of flash lights); So I am not sure if it is entirely a copyright thing; But thanks for the info on the circus, would love to watch it, and also since we don't have a government at the moment Lawrence From eye at ranadasgupta.com Sat Dec 29 11:36:55 2007 From: eye at ranadasgupta.com (Rana Dasgupta) Date: Sat, 29 Dec 2007 06:06:55 -0000 Subject: [Commons-Law] End of a perfect commons In-Reply-To: References: Message-ID: <4775E37B.40108@ranadasgupta.com> The International Music Score Library Project (IMSLP) has been shut down after several threats of lawsuits from music publishers. Started by a student in Canada, IMSLP was a major resource of music scores of western classical music uploaded by a global community in PDF form. Music scores are the written version of a piece of music, as set down by the composer, and are necessary for anyone wanting to play or study that piece. The paper versions cost anything up to $80, and therefore represent a significant expense for people such as music students. IMSLP collected only scores whose copyright had expired. In the case of the majority of western classical music this was easy since most of the works were more than a century old and there were many editions in existence from before the copyright period. IMSLP was a perfect "commons" project: it allowed a well-defined community to jointly build a scarce and expensive resource whose cultural value had been validated by the centuries and was largely free of copyright constraint. Music publishers, however, have continued to bring out new editions of these works whose copyrights still obtain, and they did not see IMSLP in such a favourable light. Though the site was fully compliant with local - Canadian - law, it was shut down on threat of legal action under Austrian law (whose copyright term is longer), thus posing the question of how jurisdictions work in such online matters. Links: IMSLP site: "The IMSLP was a repository of more than 15,000 musical scores" http://imslp.on-wiki.net/ Article by internet law professor Michael Geist: "This case is enormously important from a public-domain perspective" http://news.bbc.co.uk/2/hi/technology/7074786.stm TEXT FROM IMSLP GHOST PAGE Introduction on what happened The International Music Score Library Project was a repository of more than 15,000 musical scores that are in the public domain here in Canada. I was forced to close the site due to circumstance after receiving lawsuit threats from music publishers that do not want the public domain to exist. The immediate threat was from Universal Edition, a publisher in Austria. Whereas copyright in Canada lasts until 50 years after the author's death, copyright in Austria lasts 20 years longer. Universal Edition threatened to sue me, perhaps in Canada or perhaps in Austria, for violating Austrian law. There is no reason why Austrian law should apply to this site in Canada, but as a student I did not have the resources to resist even an absurd threat from a company with money to pay lawyers to attack music. I greatly thank Richard M. Stallman for his support in this matter, and for his offer and help in writing this summary introduction (something that I had neglected). Thoughts after the closure of IMSLP I felt an incredible sadness after this incident. Yet this sadness is only in part the result of having to close down IMSLP (at least for the time being). A much deeper sadness is the realization of the fact that classical music, as journalist Michael Kimmelman aptly put it, "survives every attempt to save it". As many musicians I know will attest to, contemporary classical music is not in a good situation. How many non-musicians know Schoenberg? Even Mahler? Despite this dire state of affairs, there are people in the classical music world who have shown themselves to have absolutely no interest in the well-being and future of classical music. Instead, they are insistant upon blindly wringing the last drop of profit from dead composers. I say "blindly", because I do not even believe their actions increase profit. And they attempt to seek justification for their actions in the name of fairness and morality. They claim they have the right to profit from the work of dead composers for eternity. What they want is not limited copyright. They want perpetual copyright. They want to keep their wallets properly lined with minimum effort. They want to change laws to make this happen, at the expense of the entire society. Like vultures, they want to peck the last bit of meat from the skeleton of dead artists. What is the purpose of copyright? To stifle creativity by prohibiting access to art that was created more than a hundred years ago? To make life easier for certain people, who are usually not the artists themselves, at the expense of everyone else? I do not believe I need to explain myself further here. I here challenge them to give even one logical reason, with proof, why, for the benefit of the society, works of dead artists should be protected for more than 50 years worldwide postmortem, a protection these people are claiming. I challenge them, as an artist myself, to give one reason why artists should receive such exemplary treatment, seeing how this is absolutely impossible in any other trade. But I do not expect an answer, because there is none. There is no logical justification. It is simply pure greed. And not even greed on the part of the artists themselves. My friends, weep with me. Weep for the resistance of the classical music world to all efforts to save it. Weep for the robbery of culture by a few people at the expense of the society. Weep for our slow but steady decent into the darkness that is Nash equilibrium. Weep with me, my friends. But do not lose hope. We must continue our unwavering belief in the accessibility of culture, in the correctness of our actions. We must continue in this course we embarked upon two years ago, in this fight for the fundamental right of all humans. Do not lose hope, for all is not lost. Response to support Quoting Michael Geist in his article published by the BBC, "thousands of music aficionados are rooting for the IMSLP in this dispute". This is no exaggeration; in the aftermath of the closure of IMSLP, I have received nearly 1000 e-mails regarding this matter, and every single e-mail is in support of IMSLP. This is, of course, not counting all the support that was expressed on the forums, supporters who have shown their support on other sites, or supporters who have not yet vocalized their support. I have received support from not only IMSLP users and music aficionados, but also notable people in other fields who have much sympathy for IMSLP's situation, and who have offered help in one way or another. In addition to the help law teams and professors in the University of Ottawa, Stanford University and University of Georgia have offered, I have also received support and understanding from notable Canadian intellectual property lawyers Dr. Michael Geist and Mr. Howard Knopf. Many other people have offered non-legal help, including GNU project founder Richard M. Stallman and Project Gutenberg founder Michael Hart. This outpouring of support further enforces my conviction that IMSLP was not wrong. Unfortunately, I am currently very overloaded with other work, and so was only able to respond to select e-mails. I will, however, try to answer the rest of the e-mails and correspondences as soon as possible. But allow me to say this here: "Thank you". Current IMSLP status I am currently in the process of reorganizing IMSLP. Like I said on the forums, what needs to be done is clear. However, when it will be done is unfortunately not yet clear at this moment. I will be updating this page when there are new developments. If you would like e-mail notification of the modification of any page on this wiki, simply sign in and click the "Subscribe" link above the particular page. From the.solipsist at gmail.com Sun Dec 30 23:23:56 2007 From: the.solipsist at gmail.com (Pranesh Prakash) Date: Sun, 30 Dec 2007 17:53:56 -0000 Subject: [Commons-Law] =?windows-1252?q?David_Byrne=27s_Survival_Strategie?= =?windows-1252?q?s_for_Emerging_Artists_=97_and_Megastars_=28in_Wi?= =?windows-1252?q?red=29?= Message-ID: <4785f1e20712300953s2b29f34eo6cfd87764b1e76fe@mail.gmail.com> Dear All, A must read. David Byrne (whom some of you might know as the Talking Heads dude) has written an article in the latest issue of Wired in which he analyses the music industry and the various options for distribution and revenue that today's artists have. He provides a break-down of the costs that go into bringing the music to you (on a CD as well as online) and sees six possible standard distribution models. Bonus material on the site includes an interview of Brian Eno. http://www.wired.com/entertainment/music/magazine/16-01/ff_byrne?currentPage=all There's also another article, with Byrne in conversation with Radiohead's Thom Yorke. You might recall that Radiohead released their album *In Rainbows* online earlier this year, bypassing their label Warner Bros. They gave the downloader the choice of paying whatever amount s/he wanted, including nothing at all. Warner Bros. cashed in on that release by releasing a retrospective boxed set, and in January will be releasing the CD version of *In Rainbows.* http://www.wired.com/entertainment/music/magazine/16-01/ff_yorke?currentPage=all Regards, Pranesh -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20071230/39bf011c/attachment-0001.html From rus.cahimb at gmail.com Mon Dec 31 15:31:15 2007 From: rus.cahimb at gmail.com (Ramanathan Muthaiah) Date: Mon, 31 Dec 2007 10:01:15 -0000 Subject: [Commons-Law] : Circus & Photography In-Reply-To: <4774D4CE.5050108@gmail.com> References: <4774D4CE.5050108@gmail.com> Message-ID: Hi Lawrence, > If I am a performer, i would hate it if > people just kept taking my photographs ( not to mention the possibility > that the flashing lights could be dangerous in a situation when acrobats > need to concentrate, or perhaps the lions are not very fond of flash > lights); I went to the circus during the first show i.e 13:00 and there are two more show timings, one at 16:00 and the last at 19:00. Though am not an expert in lighting and photography, I think that the lights used inside the tent should be powerful enough to lit up the main area during the evening shows; maybe they are positioned in a way not to cause glare during the performance, especially by the acrobats. -- regards Ramanathan