From patrice at xs4all.nl Wed Nov 5 17:22:32 2008 From: patrice at xs4all.nl (Patrice Riemens) Date: Wed, 5 Nov 2008 12:52:32 +0100 (CET) Subject: [Commons-Law] [Fwd: [ESG-LIST] High Court of Karnataka "put brakes on lake privatisation"] Message-ID: <7956.86.91.173.154.1225885952.squirrel@webmail.xs4all.nl> Interesting... ---------------------------- Original Message ---------------------------- Subject: [ESG-LIST] High Court of Karnataka "put brakes on lake privatisation" From: "ESGINDIA" Date: Wed, November 5, 2008 11:55 To: esglist at lists.esgindia.org -------------------------------------------------------------------------- *High Court of Karnataka "put brakes on lake privatisation"* Environment Support Group (ESG) had a very significant victory in its Public Interest Litigation (PIL) against the privatisation of lakes on 04 Nov 2008. Passing an interim order, the High Court of Karnataka has restrained the Govt and private parties from proceeding with any further investment or development of lakes based on the privatisation (PPP) model. The Court gave two weeks to the Govt to file a comprehensive plan for the protection of lakes and gardens in a manner that would ensure everyone, especially the "have nots", could enjoy the bounty of nature. ESG advocate Mr. Sunil Dutt Yadav and Leo F. Saldanha, Coordinator of ESG (as party in person) argued the case as Petitioners. Heading the Division Bench of the High Court, Chief Justice P D Dinakaran invested substantial time of the Court in expressing its anguish over privatisation of the commons, because, as the Judge remarked, "we cannot be mute spectators" when the common man has to "stare at a lake through a fence". In fact this argument was extended as applicable to all lakes and forests. Many of his observations are worth noting as indicative of the mind of this Court on issues relating to priviatisation of commons. A copy of the interim direction of the Court would be online at www.esgindia.org soon as we receive a copy. Enclosed is a note on the observations made by the High Court while passing the interim order and some articles reporting this significant victory. Regards, Environment Support Group 105, East End B Main Road Jayanagar 9th Block East Bangalore 560069. INDIA Tel: 91-80-22441977/26531339 Voice/Fax: 91-80-26534364 Email: esg at esgindia.or/esgindia at gmail.com Web: www.esgindia.org * The issue: * Govt of Karnataka under the leadership of Chief Minister S M Krishna and closely guided by the Bangalore Agenda Task Force (an Govt constituted forum involving primarily corporate chiefs principally drawn from the IT and BT sectors) constituted the Lake Development Agency (LDA) as an Association for the ostensible purpose of conservation of lakes by collaborating with 'non-profit organisations'. However, soon after, LDA began to conclude a series of long lease (15 y) agreements with a variety of private parties, handing over lakes for commercial development for a really small rent. Under the Expression of Interest scheme, parties could develop a range of facilities that included floating restaurants, water scooters, entertainment parks, party kiosks, food courts, etc. At least four large lakes (appropriately described as tanks, as these waterbodies are all built to harvest rain and surface runoff over hundreds of years) in Bangalore were handed over: Hebbal Lake to East India Hotel (Oberoi group of hotels), Nagawara (Lumbini - builder), Agara Lake (Biota, a little known company) and Vengaiah Kere (Par C, a local builder). In addition, LDA farmed out over 20 lakes on a short term "Adopt a Lake" scheme. Our Public Interest Litigation argued (accessible online at www.esgindia.org) that these schemes were illegal. We also argued that such a policy fences off public, social and ecological spaces from the public, and is an approach where the State is abandoning its duty to protect and maintain nature and public commons. The approach also had a severe and debilitating impact on the rights of fishing communities still dependent on lakes for livelihoods and cattle rearers. Another impact we highlighted was that private parties fenced of these lakes and charged unaffordable user fees to access them (obviously with profit motives) - making it impossible for local communities to use these public spaces as a matter of routine and Right. Needless to state, amongst the worst impacts would be on the ecology of lakes, especially migratory waterfowl which would not be able to settle into lakes. *What Chief Justice leading the Division Bench observed yesterday in Court when passing the interim order: * _On the overall policy_: Nothing but "exploitation and misuse of power. How can the Govt work like this?..... Govt is the guardian and Trustee. You created Lake Development Agency to conserve lakes, and they acted as an agency to trade them away". "Is nature to be preserved only for the haves? Bangalore has already become only IT city! Very unfortunate situation. Original residents of Bangalore city will be alienated from their right of enjoyment of nature. " "If this country is meant only for haves, we cannot be mute spectators." The Chief Justice highlighted how this hurts the common man by using the analogy of an High Court employee taking his/her family to a lake on a visit. He explained that to get in, it would cost Rs. 100 (for a family of five at at least Rs. 20/head). Then for every service inside there would be a fee. At the end of the day, the employee would have spent at least a 1000 rupees, something s/he could not afford even once a year for a mere visit to a local neighbourhood lake. Chief Justice berated this policy by saying "If this is permitted, a time will come when people have to pay to enter Cubbon Park and Lal Bagh" (Bangalore's two principal parks). "Maybe even the High Court!". "With all humility, concern and deep worries we are investing the precious time of this Court in this matter. Our deep concern is that one day or the other these places may not be accessible for the common man. This is 100% true! Poor man has to stand outside the fence and stare at a lake? Common man is deprived of the natural right to enjoy beauty of nature." *On the Lakes ecology: * "This city is fortunate to have such ecological richness." "Once birds stop on their migratory route in one season, next season they may not come". *Date:05/11/2008* *URL: http://www.thehindu.com/2008/11/05/stories/2008110558340100.htm* ------------------------------------------------------------------------ Back Front Page * Court put brakes on lake privatisation * Staff Reporter / LDA restrained from entering into fresh agreement with companies / ------------------------------------------------------------------------ / Developers told not to take up further work in the lakes Government asked about steps needed to maintain lakes and gardens / ------------------------------------------------------------------------ BANGALORE: The Karnataka High Court on Tuesday restrained the Lake Development Authority (LDA) "from entering into any fresh agreement with companies to develop any lake in the State" and also obtained an undertaking from three developers that they shall not make any further development in Hebbal, Nagwara and Agaram lakes, all water bodies in Bangalore. A Division Bench comprising Chief Justice P.D. Dinakaran and Justice V.G. Sabhahit passed the order on public interest litigation (PIL) petitions by Environment Support Group (ESG) and Leo Saldanha who had challenged the LDA action in handing over to private developers the three lakes. While the Hebbal lake was handed over to East India Hotels Group, Biota Natural Systems was given Agaram and Lumbini Gardens the Nagwara lake. The petitioners had questioned the legal framework under which the privatisation of these lakes was taken up. They said the State set up the LDA on July 10, 2002 to protect the existing water bodies but had unilaterally decided to privatise some of the lakes and tanks around Bangalore to benefit hoteliers and builders. While some builders had constructed buildings adjacent to the lakes leased to them, others started dredging operations without the Karnataka State Pollution Control Board's permission. The petitioners urged the court to stay the notifications relating to the privatisation of the lakes. When the Karnataka State Pollution Control Board (KSPCB) said its consent was not taken before the lakes were privatised, the Bench sought to know how the Government could ignore the report of the KSPCB and Forest Department and go ahead with the privatisation of the lakes. The Bench asked the Government advocate to inform the court on the steps needed to be taken by it to maintain the lakes and gardens so that commercial activities could be avoided. Expressing its anguish over the manner in which the lakes were privatised, it orally asked why the have-nots should be deprived of their rights to enjoy nature. / / © Copyright 2000 - 2008 The Hindu Printed from The Times of India -Breaking news, views. reviews, cricket from across India http://timesofindia.indiatimes.com/rssarticleshow/msid-3673772,prtpage-1.cms HC asks LDA not to enter into fresh arguments 5 Nov 2008, 0431 hrs IST,TNN BANGALORE : The high court on Tuesday directed the Lake Development Authority (LDA) not to enter into "any fresh argument with anybody" on issues related to the city's lakes. "Two weeks have been given to the government to take steps for maintaining lakes and gardens in the city. LDA shall not enter into any fresh argument with anyone on matters of lakes. Also, commercial activities should be avoided and environment be preserved so that any person can enjoy the beauty of nature," a division Bench headed by chief justice P D Dinakaran observed. The HC also recorded statements of lease holders who stated they will not take up developmental works near Hebbal, Agara and Nagawara lakes. "Lakes are being polluted with people letting sewage flow into the water bodies. They are becoming breeding grounds for mosquitoes. And it seems the LDA and government are not doing anything. They are wasting the talent of good officers who want to do something," he explained. "Able officers are now working as consultants for private firms after 6 pm. This is a pathetic situation. We can't be mute spectators to a situation where nature is preserved only for the haves. Everybody has a right to enjoy nature. Now, let your tourism board come up with a proposal," the Bench said while hearing PIL filed by Environmental Support Group and Leo Saldana, which challenged the privatisation of three lakes. LDA had leased Hebbal lake to EIH Ltd, Agaram lake to Biota Natural Systems and Nagawara lake to Lumbini Gardens. The petitioners complained the companies have started building food joints on the lake premises, which may lead to pollution. Deccan Herald *»* City *»* Detailed Story No more privatisation of lakes, says High Court DH News Service, Bangalore: The State High Court on Tuesday directed the Lake Development Authority (LDA) not to enter into fresh agreements enabling private parties to own lakes. A division of the HC bench, comprising Chief Justice PD Dinakaran and Justice VG Sabhapathi, took the State government to task, observing that the government was trying to commercialise lakes by handing them over to the private parties. The Bench directed the LDA to take a decision regarding steps to be taken to protect lakes and gardens, to preserve beauty of cities, and to maintain ecological balance, within two weeks. The bench delivered the verdict after hearing a PIL filed by a few environmentalists questioning the order handing over the ownership of Hebbal, Nagavara and Agara lakes to private parties. At one stage, the bench questioned the LDA as to whether it was a private or government body. The main objective of the Authority is to protect lakes. But lakes have become grounds to breed mosquitoes. The LDA has failed to take any steps though drain water is discharged into the lakes, the Justice observed. Private parties are spending several crores to develop lakes, but the government has not taken any step. The bench questioned LDA as to what amount had been earmarked in the budget for the protection of lakes. There are many talented officials in the government who possess tremendous knowledge about preserving lakes, but their talent has not been effectively utilised. Hence, such officials are selling their talent to private parties, the bench noted. "The government is taking all efforts to prevent citizens from enjoying natural beauty. The Court cannot be a mute spectator to such a development. If allowed to act as per its whims and fancies, the government will soon privatise Cubbon Park and Lal Bagh," the bench observed. The bench issued a directive and adjourned the hearing. _______________________________________________ Esglist mailing list TO UNSUBSCRIBE FROM THIS LIST, SEND AN EMAIL TO 'esglist-request at lists.esgindia.org' WITH SUBJECT 'unsubscribe' -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20081105/9c6980d0/attachment-0001.html -------------- next part -------------- A non-text attachment was scrubbed... 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Name: esg_vcf.DEFANGED-16743 Type: application/defanged-16743 Size: 362 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20081105/9c6980d0/attachment-0001.bin From pranesh at cis-india.org Sat Nov 8 01:32:08 2008 From: pranesh at cis-india.org (Pranesh Prakash) Date: Sat, 8 Nov 2008 01:32:08 +0530 Subject: [Commons-Law] Fwd: [A2k] SCCR 17 final agreed upon text on reading disabled persons In-Reply-To: <1226082587.7111.67.camel@dell-desktop.example.com> References: <1226082587.7111.67.camel@dell-desktop.example.com> Message-ID: <4785f1e20811071202i45423880u73ba5cc9439362de@mail.gmail.com> Dear All, James Love of KEI sent the following update about the final text of SCCR 17 a short while back. The final accepted statement for the reading disabled is a four-sentence one. It's given in Jamie's post. Two short excerpts: "I will say that the opposition to the proposal for a treaty for the blind and disabled coming from France and the Europe Member states (plus Switzerland) was quite shocking to many participants in the room, and the lack of leadership or opposition among other developed countries on this issue (including the USA, Canada and Japan), was appalling. Only New Zealand and Australia among the high income countries did anything openly helpful in addressing the core concerns of blind, visually impaired and other disabled persons." and "I said, "why didn't you speak up? — this is a human rights issue." She said, "this isn't the human rights commission, -- this is WIPO." She wasn't being ironic or critical of WIPO. She thought it was natural that the collection society would come first on this issue." Regards, Pranesh ---------- Forwarded message ---------- From: James Love Date: Fri, Nov 7, 2008 at 23:59 Subject: [A2k] SCCR 17 final agreed upon text on reading disabled persons To: a2k http://www.keionline.org/blogs/2008/11/07/sccr17_disabled-text/ Knowledge Ecology Notes SCCR 17 final agreed upon text on reading disabled persons 7 November 2008 Below is the final agreed upon text for the SCCR 17 on the issue of access for persons with reading disabilities. There are four sentences, in one paragraph. - ---------- The Committee acknowledged the special needs of visually impaired persons and stressed the importance of dealing, without delay and with appropriate deliberation, with those needs of the blind, visually impaired, and other reading disabled persons, including discussions at the national and international level on possible ways and means facilitating and enhancing access to protected works. This should include analysis of limitations and exceptions. This should also include the possible establishment of a stakeholders platform at WIPO, in order to facilitate arrangements to secure access for disabled persons to protected works. A number of delegations referred to a paper presented by the World Blind Union (WBU) and expressed interest in further analyzing it. - --------- I may later write a more detailed comment on what transpired, but here are some quick thoughts. The SCCR 18 meeting in the Spring will be very important. By then we expect to see a formal proposal for a treaty by one or more WIPO member states, and we also expect to see significant civil society mobilization, including the disabled community. I will say that the opposition to the proposal for a treaty for the blind and disabled coming from France and the Europe Member states (plus Switzerland) was quite shocking to many participants in the room, and the lack of leadership or opposition among other developed countries on this issue (including the USA, Canada and Japan), was appalling. Only New Zealand and Australia among the high income countries did anything openly helpful in addressing the core concerns of blind, visually impaired and other disabled persons. In terms of what the WIPO SCCR did, one should start with the embrace of IFRRO (the collection society) proposal for "a stakeholders platform at WIPO." This was the main push by Europe and also the United States. WIPO, as a UN agency, was dealing with the topic of limitations and exceptions for blind and other disabled people — a vulnerable population whose access should be addressed a matter of human rights. IFRRO developed its proposal without any consultations with the blind or disabled communities — none at all. And their proposal was opposed by the WBU in the meeting, partly on the grounds that the was no consultation, and because IFRRO was on record in the meeting opposing limitations and exceptions for the blind and disabled. Nonetheless, France and all European Member states threw their weight behind the IFRRO proposal, and opposed everything the WBU was asking for. The EU even blocked from the consensus any discussion of the cross-border delivery of accessible works. It is only because of the resistance from Latin American, Asian and African countries that the concerns of the blind and disabled community advanced. While IFRRO had never even bothered to talk to the WBU or any other disabled groups, the WBU had petitioned WIPO regularly since 2002 to provide for harmonization of limitations and exceptions, and to address the import/export issue, and specifically the intellectual property barriers that are blocking the development of new global libraries for the blind and disabled populations. To appreciate how extensive the WBU's presentations to WIPO were on this topic, see: http://www.keionline.org/index.php?option=com_content&task=view&id=213 The SCCR 17 text on disabilities will, in the end, be sufficient to move this issue forward, and we expect a very important debate in the Spring of 2009, and we fully expect the new Obama government to abandon the alliance with the EU, in opposition to the blind and disabled community, and do the right thing, and support a treaty. Nonetheless, it was an insult and a disgrace that the IFRRO proposal not only was embraced and advanced in this meeting, without any debate on its merits or even purpose, but that it was given a higher status in the decision than was the six year effort by the WBU to deal with an important copyright issue. I will close with the comments from one delegation at the end of the evening. The delegate, from a high income country, had been silent the entire meeting, but is a country one expects to provide some moral leadership. I said, "why didn't you speak up? — this is a human rights issue." She said, "this isn't the human rights commission, -- this is WIPO." She wasn't being ironic or critical of WIPO. She thought it was natural that the collection society would come first on this issue. That pretty much summed things up. James Love, November 7, 2008 - -- James Love, Director, Knowledge Ecology International http://www.keionline.org | mailto:james.love at keionline.org Wk: +1.202.332.2671 | US Mobile +1.202.361.3040 | Geneva Mobile +41.76.413.6584 _______________________________________________ A2k mailing list A2k at lists.essential.org http://lists.essential.org/mailman/listinfo/a2k -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20081108/c6be9683/attachment.html From pranesh at cis-india.org Wed Nov 12 19:07:37 2008 From: pranesh at cis-india.org (Pranesh Prakash) Date: Wed, 12 Nov 2008 19:07:37 +0530 Subject: [Commons-Law] University of Chicago Law School Faculty Blog on Bilski Message-ID: <4785f1e20811120537u3d77c51erbba074726705276e@mail.gmail.com> Dear All, I realise I'm a bit late, but here's the U. Chi. prof Randy Picker on *In re: Bilski*. Cheers, Pranesh -- Pranesh Prakash Programme Manager Centre for Internet and Society T: +91 80 40926283 W: http://cis-india.org ----- (Also see PrawfsBlog on this case: < http://prawfsblawg.blogs.com/prawfsblawg/2008/10/hot-on-the-the.html>) http://uchicagolaw.typepad.com/faculty/2008/10/in-re-bilski-th.html In re Bilski: The Fed Circuit Tells Inventors to Stuff ItRandy Picker This morning, the United States Court of Appeals for the Federal Circuit released its eagerly-awaited decision in Bilski. In a 9-3 decision, with five opinions spanning 132 pages, the Federal Circuit sharply cut back on the availability of patents for processes. In so doing, the court substantially stepped back from its prior decision in *State Street Bank*, the decision that brought us the business-method patents controversy. That said, as emphasized in the three dissenting opinions, there is much that is uncertain in today's majority opinion and even the precise status of *State Street Bank* is left open. And the opinions betray substantial differences about the role of patent policy in fostering innovation, especially about the stuff of yesteryear and the bits and bytes of the modern economy. To set the stage quickly, in 1998, the Federal Circuit issued its landmark ruling in *State Street Bank*. That decision considered the patentability of a system for computerized mutual funds pooling. That required a consideration of section 101 of the Patent Act which provides that "[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." As these things go, relatively simple, and it is important to see what is there and what is not there. As the majority opinion in *Bilski* emphasizes, patentability is limited to inventions that constitute a "process, machine, manufacture, or composition of matter." And as *State Street Bank*emphasized, the statute itself sets out no subject matter or field restrictions. Put differently, there are no areas of innovation which are somehow outside the scope of the Patent Act so long as the invention can fit into the process, machine, manufacture or composition of matter formulation. Prior to *State Street Bank*, business methods were suspect or just barred, but afterwards, this outside-the-text limit on patentability was gone. The mutual funds pooling invention faced a second limit, namely that mere mathematical algorithms are not patentable. This flows from the notion that we should distinguish abstract mathematical relationships that exist in nature from practical applications of those ideas. In *State Street Bank*, the Federal Circuit concluded that the mutual funds pooling algorithm was different from a mere mathematical algorithm in that it produced "a useful, concrete and tangible result." Since that time, patent law has grown increasingly controversial. There is a growing body of work that is quite critical of the current patent system—Patent Failureby Bessen and Meurer and Innovation and Its Discontentsby Jaffe and Lerner are representative—and the judicial pendulum appears to be swinging in response. The Supreme Court has started to cut back on patents—see KSR v. Teleflexand eBay v. MercExchange —and with this morning's decision, the Federal Circuit itself has piled on in a big way. The patent application in *Bilski* addressed: A method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price comprising the steps of: (a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate corresponding to a risk position of said consumer; (b) identifying market participants for said commodity having a counter-risk position to said consumers; and (c) initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions. As the majority noted, this is just a method for hedging commodity risks. It doesn't depend on a special machine or necessarily any machine, though, to be sure, computers are heavily involved in establishing most hedging positions. Is this a patentable process? The majority opinion ultimately offers a relatively technical answer, namely that a patentable process must be tied to a particular machine or apparatus or must "transform[] a particular article into a different state or thing." (Majority op, p.10) The majority opinion extracts this machine-or-transformation test from a group of prior Supreme Court cases. In *Gottschalk v. Benson*, 409 U.S. 63 (1972), the Court expressly left open the possibility that a patentable process could exist outside of the confines of the machine-or-transformation test, and also did so in *Parker v. Flook*, 437 U.S. 584 (1978). But three years later, in *Diamond v. Diehr*, 450 U.S. 175 (1981), the Court didn't repeat this. This hardly seems dispositive but for the majority it is enough, see p.14, to embrace the machine-or-transformation as the test for determining the eligibility of a process for patenting. As to the application in question in *Bilski*, as noted above, no machine was claimed necessary for the invention. That meant transformation would be required, but the court found nothing like that here: "applicants here seek to claim a non-transformative process that encompasses a purely mental process of performing requisite mathematical calculations without the aid of a computer or any other device, mentally identifying those transactions that the calculations have revealed would hedge each other's risks, and performing the post-solution step of consummating those transactions." The three dissenting opinions head in different directions. Judge Newman's opinion emphasizes the enormous uncertainty generated by the majority's new test. Take *State Street Bank* itself. The core holding with regard to business-method patents survives, see majority op at p.21, but the narrower result that served to exclude the mutual funds pooling invention from the mathematical algorithm limitation is gone (see at p.20 n.19). Where does that leave the mutual funds invention in *State Street*? We don't know. Judge Newman suggests that it would be unpatentable, as she finds it difficult to distinguish the invention there from that presented in *Bilski*(see Newman op, p.35). She also suggests that the court's new approach puts at risk a broad range of "computer-implemented and information-based" inventions (p.29). And she has little doubt about the overall effect of the opinion on innovation: "Although this uncertainty may invite some to try their luck in court, the wider effect will be a disincentive to innovation-based commerce. For inventors, investors, competitors, and the public, the most grievous consequence is the effect on inventions not made or not developed because of uncertainty as to patent protection." (p.36) Judge Mayer's dissenting opinion joins the patent naysayers: "The patent system has run amok" (Mayer op, p.24). He dates that from *State Street Bank: *"the patent system is intended to protect and promote advances in science and technology, not ideas about how to structure commercial transactions." (p.1) *State Street Bank* has allowed "exclusive ownership of subject matter that rightfully belongs in the public domain." (p.20) Judge Mayer believes that the new test will not end that process, as a clever reworking of the *Bilski* claims—tying them more directly to actual machines—might result in the patent being sustained. He leaves no doubt about what he would have done: "the time is ripe to repudiate *State Street*and to recalibrate the standards for patent eligibility, thereby ensuring that the patent system can fulfill its constitutional mandate to protect and promote truly useful innovations in science and technology." (p.25) Finally, Judge Rader believes the *Bilski* could have been resolved on simpler and narrower grounds along the lines that "because Bilski claims merely an abstract idea, this court affirms the Board's rejection." (Rader op, p.1) In failing to write that simple opinion, in Judge Rader's view, the majority has instead offered a narrow vision of patentability tied "to the age of iron and steel at a time of subatomic particles and terabytes." (p.1). A clear—on paper, if not in practice—result: process must be tied to machines or transformation, and seemingly transformation of stuff—atoms—and perhaps not just bytes, though the majority opinion is quite coy about how *State Street* would come out under the *Bilski* formulation. No special exclusion for business-method patents but perhaps a substantial narrowing of the overall scope of process patents in favor of the stuff of yesteryear—cured rubber—and much less protection for the stuff of today—business methods and computer-based processes, though again, the majority opinion carefully comes to the line without crossing over it (See majority op, p. 21 n. 23 ("Therefore, although invited to do so by several amici, we decline to adopt a broad exclusion over software or any other such category of subject matter beyond the exclusion of claims drawn to fundamental principles set forth by the Supreme Court.") -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20081112/f1cfef3e/attachment-0001.html From pranesh at cis-india.org Thu Nov 13 19:42:59 2008 From: pranesh at cis-india.org (Pranesh Prakash) Date: Thu, 13 Nov 2008 19:42:59 +0530 Subject: [Commons-Law] Batman sues Nolan? Message-ID: <4785f1e20811130612v4b58caddu778e1b1e9aa8d780@mail.gmail.com> Dear All, I do hope this has been cite-checked properly! A few more stories coming up about Slumdog Millionaire, and Coca-Cola and Mercedes-Benz, crazy Argentine court rulings, etc. Cheers, Pranesh -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org T: +91 80 40926283 -- [h/t: Nikhil Singhvi] http://www.thebadandugly.com/2008/11/10/batman-sues-christopher-nolan/ There's a city in Turkey named Batman that has recently drummed up some press in the area for a rash of unsolved murders and a severely elevated number of female suicides. Hüseyin Kalkan, the pro-Kurdish Democratic Society Party mayor of Batman needs money to face these issues, so when it was suggested to him by a reporter that he try to pull some money from the Western world's Batman, he thought it'd be a great idea to sue someone. Thing is, he's suing Christopher Nolan, the only Batman filmmaker to make a movie without the name "Batman" in the title. Batman is not suing DC Comics, who own Bob Kane's Batman character, nor are they suing Warner Bros, who owns all Batman's film appearances. The genius points go to Hüseyin Kalkan today. From hurriyet.com.tr : "The royalty of the name 'Batman' belongs to us … There is only one Batman in the world. The American producers used the name of our city without informing us," Kalkan told to the Doğan news agency. Batman is a centuries old city, taking root in the Neolithic age but becoming significant when oil was found in the region at the end of 1940s. Almost a decade before that, Batman was created as a comic hero. Kalkan is going to sue Christopher Nolan, the director of the latest Batman movie "The Dark Night," not DC Comics, the creator of the superhero.Mayor Kalkan, speaking to the Hürriyet Daily News and the Economic Review, said last year foreign media picked up on Batman and the city's increasing suicide rates among women. He said a columnist asked why Batman's mayor did not sue the movie Batman for royalties while struggling with economic problems. "We found this criticism right and started to look for legal possibilities of a case like that," he said. Meanwhile, local newspaper Batman Çağdaş alleged yesterday that Batman residents living abroad cannot use Batman as a title for their business, leading the municipality to think about the royalty rights of that name. Meanwhile, the name of a local region cannot be registered as a brand name, said lawyer Vehbi Kahveci, head of the Intellectual and Industrial Property Rights Commission of the Istanbul Bar. Also having overseas clients, Kahveci said "Batman" and his image is registered all around the world. The Batman Municipality missed the period in which they could object to the registration decision for Batman's name as a superhero, according to Kahveci. This is an interesting issue, but one that will be mocked simply because they chose the wrong person to sue. Nolan must be laughing in his pile of Dark Knight money right now. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20081113/dc79d7dd/attachment.html From pranesh at cis-india.org Fri Nov 14 14:38:11 2008 From: pranesh at cis-india.org (Pranesh Prakash) Date: Fri, 14 Nov 2008 14:38:11 +0530 Subject: [Commons-Law] A Tale of Mercedes-Benz and Coca-Cola: Or, why this post is trademark infringement / dilution / tarnishment Message-ID: <4785f1e20811140108i1ea1242aib17935e31e360b30@mail.gmail.com> Dear All, Interesting tidbit about Danny Boyle's Slumdog Millionaires: it is a censored version that you'll get to see in the theatres, since a Merc (presumably the hood ornament) and a coke bottle (the logo on the bottle) have been blanked out... because of trademark concerns. (Now I'm wondering whether the blog post covering it misspells the Mercedes in "Mercedes-Benz" as Mercedez just to avoid trademark infringement.) The compulsory diatribe: This is the heights of ridiculousness. Does an artist have to create a whole alternative universe when talking about the world we live in? -- A world where there are no brands and no logos (wouldn't Naomi Klein be proud)? Even if fake brands are created, companies would argue that the make-believe brands are evocative of their real-world brands, and try to curb them. And what would happen to Run DMC's "My Adidas"? I guess that would be okay since it portrays the brand in a good light. And what is the worst part? The trademark experts at IPKat (and the commenters) aren't sure that this story is legally ridiculous. They actually think that given the state of affairs in the UK and EU, Mercedes-Benz and Coca-Cola might actually have a case. Cheers, Pranesh -- Pranesh Prakash Programme Manager Centre for Internet and Society T: +91 80 40926283 W: http://cis-india.org -- http://ipkitten.blogspot.com/2008/10/companies-object-to-use-of-trade-marks.html Friday, 31 October 2008 Companies object to use of trade marks in films The IPKat read with bemusement a piece in today's Times describing how Mercedez Benz and the makers of a popular unnamed fizzy drink 'meant to unite the world' insisted that their trade marks be removed from scenes in the film Slumdog Millionaire. The film, the latest by British director Danny Boyle (who sounded off about the issue at the film's premier last night), tells the story of a boy from Bombay's slums who reaches the final of the Indian version of Who Wants to be a Millionaire. The companies are alleged to have thought that their brands would be sullied in shown in the setting of the slums. The film makers were forced to spend thousands of pounds blanking out the logos in scenes were the stars were shown drinking fizzy drinks on a rubbish dump and where a Mercedez car, driven by a gangster, was shown in the slum. According to Boyle: "We wanted to use a Mercedes because . . . this guy, this gangster would drive a Mercedes . . . but if you use Mercedes then clearly you have to get permission, and we asked for their permission and they refused it." Could Boyle have just gone ahead and used the trade marks, the IPKat wonders? The use might lead to unsavoury associations, bringing with it a risk of tarnishment, but is it trade mark use, and is trade mark use even needed? (We've had lots of cases about this, but the answer still isn't clear, and perhaps the answer is different for Art.5(2) anyway). This underlines the accute need for clear guidance from the ECJ on the issue for once and for all. Life would be rather difficult if trade mark owners can use their marks to stop real products being shown in films, or even just in films which are not to their liking. Actually, the outcome in this situation could have been worse - at least the companies don't seem to have argued that their product shapes are trade marks, the use of which they can control. Merpel notes with a degree of regret that it wasn't the association with a gangster that annoyed Mercedez, but rather the association with a slum. Posted by Ilanah at 10/31/2008 02:13:00 PM -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20081114/b719b08f/attachment.html From anivar.aravind at gmail.com Fri Nov 14 15:24:48 2008 From: anivar.aravind at gmail.com (Anivar Aravind) Date: Fri, 14 Nov 2008 01:54:48 -0800 Subject: [Commons-Law] Register for for International Conference on freedom of Computing development and Culture Message-ID: <35f96d470811140154u79fa6f92x4c8aec517aa05772@mail.gmail.com> Free Software Free Society, is an International Conference on Free and Open Source software and Free Knowledge Movements being organised by Government of Kerala and Free Software community in Kerala. The conference will explore the possibilities offered by Free and Open Source Software in addressing broader questions such as Governance, Digital Inclusion, Development and Culture. The Conference will be showcasing various Free and Open Source Software applications and free content initiatives being undertaken by governmental and non-governmental organizations from around the world, particularly the developing countries. The Conference will have thematic sessions covering the selected areas, and case studies that illustrate successful interventions from the countries represented. Sharing of experiences from different countries is expected to enrich the discussions and lead on to exploration of collaborative programmes as a part of the post-conference follow-up. Registration is started http://fsfs.in/content/registration-fsfs-conference-open-now See the list of speakers http://fsfs.in/content/speakers Anivar -- Any responsible politician should be encouraging a home grown Free Software industry because it creates the basis for future jobs. Learning Windows is like learning to eat every meal at McDonalds. -- Any responsible politician should be encouraging a home grown Free Software industry because it creates the basis for future jobs. Learning Windows is like learning to eat every meal at McDonalds. From rvjayapadma at gmail.com Mon Nov 17 11:52:50 2008 From: rvjayapadma at gmail.com (Jayapadma) Date: Mon, 17 Nov 2008 11:52:50 +0530 Subject: [Commons-Law] Free Software, Free Society conference - Thiruvananthapuram, Kerala, December 9-11, 2008 Message-ID: <17d089750811162222o3aa18d5cifa435d9a62fcd4f6@mail.gmail.com> *Free Software, Free Society conference - 2nd International Conference on freedom in Computing, Development and Culture, Thiruvananthapuram, Kerala, December 9-11, 2008* - Registration open - www.fsfs.in Free Software Free Society (www.fsfs.in), is an International Conference on Free and Open Source software and Free Knowledge Movements being organised by Government of Kerala and Free Software community in Kerala. The conference will explore the possibilities offered by Free and Open Source Software in addressing broader questions such as Governance, Digital Inclusion, Development and Culture. The Conference will be showcasing various Free and Open Source Software applications and free content initiatives being undertaken by governmental and non-governmental organizations from around the world, particularly the developing countries. The Conference will have thematic sessions covering the selected areas, and case studies that illustrate successful interventions from the countries represented. Sharing of experiences from different countries is expected to enrich the discussions and lead on to exploration of collaborative programmes as a part of the post-conference follow-up. Located at the intersection of Free Software, Development and Society, the FSFS Conference will examine the application of the Free Software model for freeing intellectual artefacts from the clutches of restrictive laws (like the Copyright Act), and making them available for human development. The conference will also address, inter alia, issues such as technology access and the digital divide, legal issues, and experiences of using the Free Software model in fields such as music, and literature. Organised by Kerala State IT Mission (http://www.itmission.kerala.gov.in/) and Society for Promotion of Alternative Computing and Employment, Thiruvanathapuram, Kerala (www.space-kerala.org) -- R V Jayapadma Office: SPACE C-11, Elankom Gardens Vellayambalam Thiruvananthapuram 10 Kerala Ph: 0471 2318997 www.space-kerala.org Residence: 'Marigold' Mercy Bungalow 86 Christ Nagar, Vazhayila, Karakulam, Trivandrum, Kerala 695564 Landline 0471-2372978 Mobile 09447594765 -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20081117/d98a91e2/attachment-0001.html From pranesh at cis-india.org Mon Nov 17 17:54:01 2008 From: pranesh at cis-india.org (Pranesh Prakash) Date: Mon, 17 Nov 2008 17:54:01 +0530 Subject: [Commons-Law] Search Engines to Block Famous Names in Argentina Message-ID: <4785f1e20811170424h699cfc0euc61d42cc716298fa@mail.gmail.com> Dear All, It seems that under Argentine law, temporary injunctions can be sought with ease even when they involve curtailment of freedom of speech and expression. Furthermore, it points to a disturbing trend of shooting the messengers (the search engines) instead of pursuing individual claims of defamation, hate speech, copyright infringement, etc., which has direct effect on the freedom of speech, and the concomitant freedom to receive information. Regards, Pranesh -- Pranesh Prakash Programme Manager Centre for Internet and Society T: +91 80 40926283 W: http://cis-india.org -- http://www.out-law.com//default.aspx?page=9588 Argentine search engines told to block famous names OUT-LAW News, 12/11/2008 Search engines in Argentina have been banned from linking to stories naming up to 100 famous people including football legend Diego Maradona in a move critics have said is tantamount to censorship. Google and Yahoo! have filtered search results relating to the names on their Argentine sites but not their international ones, the companies told internet filtering campaigning organisation the OpenNet Initiative (ONI). Yahoo! has blocked all search results for the individuals, and has published a notice instead of results. That notice, in an automatic translation, says: "Because of a court order sought by private parties, we have been forced to temporarily remove some or all of the search results". No final court ruling has been made on the cases but temporary orders have been issued restricting search engines from publishing search results relating to 100 people including public servants, judges, models and actors. Martin Leguizamón Pena has said that he is the lawyer behind 108 applications to Argentinian courts since 2006 seeking the blocking of Google and Yahoo! search results relating to his clients. He told Argentina's News Magazine that he had been successful in 80% of the cases and that he took the action to protect the image rights, privacy and honour of his clients. Local press reports claim that some of the orders sought by Pena relate to specific articles, sites or blogs and some relate to the blocking of anything produced by a particular search term or name or a combination of search terms or names. Google's manager of government affairs and public policy for Latin America Pedro Less Andrade wrote in a Google blog last month that the court measures "violate both the freedom of expression and access to information … impacting on the development and investment in local connectivity services and the information society". Quotations from his blog posting have been automatically translated. Andrade also suggested that Google may appeal some of the orders if it believed that they are without basis, technically impossible, disproportionate to the aim behind the order or affect users' rights to freedom of expression and censorship-free communication. The blocking only relates to the Argentinian versions of Google's and Yahoo!'s search engines. All the material will be viewable through the .com global versions or through other countries' versions of the search engines. Wendy Seltzer founded Chilling Effects, which campaigns to stop abuses of the law to undermine free speech. She told campaigners ONI that the Argentinian action was "a telling example of the fragmentation of the internet via intermediaries. Rather than going directly to the source of objectionable content, complainers find someone in the middle who can be persuaded to block access in at least some locations." "This kind of takedown often obscures the source of the objections and removals," she said. "Chilling Effects aims to add transparency to the process both by showing takedown demands and by allowing people to compare results across various localized versions of search engines." See: Andrade's blog post < http://googleamericalatinablog.blogspot.com/2008/10/la-censura-previa-nunca-es-un-buen.html > -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20081117/d7b81ad8/attachment.html From ren at aldermangroup.com Mon Nov 17 19:20:06 2008 From: ren at aldermangroup.com (Ren Reynolds) Date: Mon, 17 Nov 2008 13:50:06 +0000 Subject: [Commons-Law] Fair use In-Reply-To: <43D6201B.F4B5F62E@RealMeasures.dyndns.org> References: <43D6201B.F4B5F62E@RealMeasures.dyndns.org> Message-ID: <4B51D0DB-BBEC-400C-9A9D-55195FCE22B5@aldermangroup.com> I've lurked on this list for ages but am not sure that this is an appropriate use of it. I'm coming to India for the first time this year to present at the Internet Governance Forum in Hyderabad, I hope to show a short series of clips of virtual worlds such as World of Warcraft. It's my belief that showing clips to a audience at a private meeting is covered by 'fair use' which I think obtains under Indian law. What's more, given the way that Virtual World companies try to use some what spurious claims to IP to control users of their system I feel a duty to exercise my fair use rights as a matter of principle. However I am un-clear on this as a matter of India law and was looking for pointer so I can make an un-ambiguous statements of my rights. Could anyone on this list provide me a pointer to statue and case law that might support my position. ren --8<-- web: www.renreynolds.com Think Tank: www.virtualpolicy.net blog: terranova.blogs.com m (UK): +44(0) 7778 285 273 m (US, only when I’m there): +1 646-417-0641 Skype: RenZephyr Twitter: twitter.com/RenZephyr Facebook: www.facebook.com/profile.php?id=734676997 Linked-in: www.linkedin.com/in/renreynolds aim | bebo | club penguin | cyworld | del.icio.us | EvE | gax | gia | habbo (UK) | iLike | jaiku | last.fm | LOTR (EU: Laurelin) | MapelStory | pownce | profilactic | rupture | skype | secondlife | there.com | tumblr. | twitter | upcoming | wacoopa | XBox Live: RenZephyr facebook | flickr | MySpace | openID | plaxo: Ren Reynolds WoW (US Ettrig): Cabot Moshi Monster: www.moshimonsters.com/monsters/renreynolds dopplr: www.dopplr.com/traveller/RenReynolds spock: http://www.spock.com/user3c4282p51k10169012ck4cc82ss12k273757s00 From george.julie at gmail.com Mon Nov 17 23:05:47 2008 From: george.julie at gmail.com (Julie George) Date: Mon, 17 Nov 2008 23:05:47 +0530 Subject: [Commons-Law] =?windows-1252?q?Update_on_the_Novartis_case_before?= =?windows-1252?q?_IPAB_=96_17_November_2008?= Message-ID: <3ceac6ff0811170935t1484ed93nedd6ff8071e3bac9@mail.gmail.com> Update on the Novartis case before IPAB – 17 November 2008 Chennai, 17 November 2008 The Intellectual Property Appellate Board (IPAB) today commenced hearing the appeals filed by Novartis AG (Novartis) challenging the Indian Patent Office's decision to reject its patent application for the beta-crystalline form of imatinib mesylate (Gleevec). A special bench of the IPAB comprising Mr. Negi (Judicial Member) and Mr. P. C. Chakraborti (Special Technical Member) is hearing these appeals. At the commencement of the hearing, Mr. Anand Grover, counsel for Cancer Patients Aid Association (CPAA), informed the IPAB that he would be objecting to new expert evidence that Novartis has sought to introduce in the appeal. He argued that because Novartis did not introduce this expert evidence before the Indian Patent Office while the Patent Office was examining the patent application and the pre-grant oppositions, it could not do so now. He added that if Novartis wanted to bring this additional evidence on record, it would have to file an application to do so. Mr. Grover also informed the IPAB that CPAA has filed an application to introduce certain prior art documents as additional evidence. Distinguishing these documents from Novartis' additional evidence, he pointed out that the documents CPAA sought to introduce are articles published in journals as opposed to expert evidence that Novartis sought to introduce. Mr. Shanthi Bhushan, counsel for Novartis, replied that he would oppose the introduction of any new evidence by CPAA or any other party. This issue will be argued before the IPAB later. Commencing his arguments, Mr. Bhushan traced the history of the Novartis litigation and summarised that the grounds for oppositions that were filed by the five parties—novelty, non-obviousness, section 3(d) and wrong claiming of priority date. He then read out the relevant provisions of the Indian patent law. Mr. Bhushan read out the definition of "inventive step" under the Indian law and said that the law requires a showing of technical advance or economic significance and non-obviousness. He argued that when a person expends a huge amount of time, money and effort in research and development resulting in a new product, there is an inventive step and the person ought to be compensated to enable him to recoup his investment. The absence of such incentive, he argued, would kill all research. Mr. Bhushan also read out section 3(d) of the Indian patent law, which does not permit patenting of new forms of known substances unless there is an enhancement in efficacy of the new form over the known substance. He argued that section 3(d) only applied to "mere" discovery of a new form of a known substance, i.e. a discovery without expending time and effort in research. However, if the discovery was the result of painstaking research involving huge amount of time, money and effort resulting in a particular selection from numerous possible permutations and combinations, the discovery was patentable on a showing of increased efficacy. Mr. Bhushan then referred the IPAB to an article on selection patents authored by Julian Jeffs [Julian Jeffs, "Selection Patents", 1988 European Intellectual Property Review 10(10), 291–296]. Quoting from the article, he said that a selection patent involves the selection for a useful and special property of a particular compound or class of compounds. Relating this to section 3(d), he argued that section 3(d) allows selection patents by allowing patenting of new forms of a known substance on a showing of increased efficacy. Outlining the development path of the beta-crystalline form of imatinib mesylate, he argued that the main issue at hand was selection patents and that Novartis had engaged in painstaking research and had invested a lot of time, money and effort in discovering the properties of imatinib mesylate, its crystal form and then the beta-crystal form from the various possible permutations and combinations. Mr. Bhushan said that US5521184, the 1993 patent issued by the United States Patents and Trademark Office, disclosed the free base of imatinib. He said that despite the fact that the 1993 US patent disclosed that salt forms could be obtained in a customary manner, Novartis has been granted patents on corresponding patent applications in over 35 counties. He argued that as the patent law was similar in almost all countries, a patent ought to be granted in India too. Perusing the list of countries in which corresponding patent applications have been granted patents, Mr. Negi observed that it appears that Poland has not granted a patent to Novartis on its application. Mr. Bhushan assured the IPAB that he would update the patent status in Poland. Pointing out that the beta-crystalline form of imatinib mesylate was 30% more bioavailable, thermo-stable at room temperature and less hygroscopic than other forms of imatinib and imatinib mesylate, he said that these advantageous properties made the beta-crystalline form more efficacious. He added that for cancer drugs, which are attendant with serious side-effects, such increase in bioavailability was crucial as it meant that a greater quantity of the drug could reach the target site with the same or lesser dosage. Mr. Chakraborti queried if the 30% increase in bioavailability of the beta-crystalline form of imatinib mesylate was an increase as compared to the imatinib free base or imatinib mesylate. Mr. Bhushan clarified that the 30% increase in bioavailability of the beta-crystalline form was over the free base of imatinib. Mr. Chakraborti also asked Mr. Bhushan whether he was arguing that an increase in bioavailability amounted to increase in efficacy and asked him to explain his understanding of efficacy. Mr. Bhushan replied that the increase in bioavailability and the improved stability at room temperature and lesser hygroscopicity all amounted increase in efficacy. Mr. Chakraborti observed that the term "efficacy" has a fixed understanding in the pharmaceutical field and asked Mr. Bhushan to provide documents to support his explanation of efficacy. Mr. Bhushan replied that he would do so when he specifically dealt with the argument on section 3(d). Mr. Bhushan then read out relevant portions from the order of the Patent Controller, Novartis' patent application and the pre-grant opposition filed by Natco Pharma Limited. The hearing was adjourned to 18 November 2008. The hearings are expected to continue on a day-to-day basis and come to a close by the end of next week. Updates are also available on a daily basis on our website at www.lawyerscollective.org. In solidarity, Lawyers Collective HIV/AIDS Unit From ren at aldermangroup.com Mon Nov 17 23:15:05 2008 From: ren at aldermangroup.com (Ren Reynolds) Date: Mon, 17 Nov 2008 17:45:05 +0000 Subject: [Commons-Law] Fair use In-Reply-To: <4785f1e20811170742m4aabddc1x79f079cbc827a479@mail.gmail.com> References: <43D6201B.F4B5F62E@RealMeasures.dyndns.org> <4B51D0DB-BBEC-400C-9A9D-55195FCE22B5@aldermangroup.com> <4785f1e20811170742m4aabddc1x79f079cbc827a479@mail.gmail.com> Message-ID: <6F771CC9-0562-4AC4-844F-2499CF5B1A53@aldermangroup.com> > What is the fair use that is being claimed? The screening of > copyrighted and pre-recorded video clips, or the making of the video > clips incorporating copyrighted images (WoW, etc.)? Screening of pre-recorded clips. Youtube and other places have clips made my either the virtual world companies for promotional purposes or clips that players / users have created in the course of using the virtual world. They are being put together in a small montage of up to 30s chunks simply to illustrate to delegates attending a given session that have never seen a virtual world, what one looks like. > I believe different parts of the fair dealings section (section 52 > of the Indian Copyright Act ) > would apply to the two situations. If you are making the video > clips elsewhere, then wouldn't the fair use/dealing law of that > jurisdiction apply? Because, then you'd be the creator of the > "cinematograph film" and be the owner of the copyright therein. Well typically this would be the Machinema case where I think that a virtual world provider would suggest, under EU / US law that it's a derivative work - which in the case that the machinema is being used for a commercial purpose is probably fair. > However, do look at s.52A(2) of the act too. Hope that helps. I'm > looking forward to seeing that video at IGF. I'll take a look, thanks I should be at the whole of the IGF. I'm going to Delhi for the first time on the way. I'm representing the think tank I recently formed; the virtual policy network, that looks at public policy and virtual worlds and would be interested in meeting up with any Indian groups interested in the same areas: IP is one of them. ren > > W: http://cis-india.org > T: +91 80 40926283 > > On Mon, Nov 17, 2008 at 19:20, Ren Reynolds > wrote: > I've lurked on this list for ages but am not sure that this is an > appropriate use of it. > > I'm coming to India for the first time this year to present at the > Internet Governance Forum in Hyderabad, I hope to show a short series > of clips of virtual worlds such as World of Warcraft. It's my belief > that showing clips to a audience at a private meeting is covered by > 'fair use' which I think obtains under Indian law. What's more, given > the way that Virtual World companies try to use some what spurious > claims to IP to control users of their system I feel a duty to > exercise my fair use rights as a matter of principle. > > However I am un-clear on this as a matter of India law and was looking > for pointer so I can make an un-ambiguous statements of my rights. > Could anyone on this list provide me a pointer to statue and case law > that might support my position. > > > ren > > > > --8<-- > > web: www.renreynolds.com > > Think Tank: www.virtualpolicy.net > > blog: terranova.blogs.com > > > m (UK): +44(0) 7778 285 273 > > m (US, only when I'm there): +1 646-417-0641 > > > Skype: RenZephyr > > Twitter: > twitter.com/RenZephyr > Facebook: www.facebook.com/profile.php?id=734676997 > > Linked-in: www.linkedin.com/in/renreynolds > > aim | bebo | club penguin | cyworld | del.icio.us | EvE | gax | gia | > habbo (UK) | iLike | jaiku | last.fm | LOTR (EU: Laurelin) | > MapelStory | pownce | profilactic | rupture | skype | secondlife | > there.com | tumblr. | twitter | upcoming | wacoopa | XBox Live: > RenZephyr > > facebook | flickr | MySpace | openID | plaxo: Ren Reynolds > WoW (US Ettrig): > Cabot > > Moshi Monster: www.moshimonsters.com/monsters/renreynolds > dopplr: www.dopplr.com/traveller/RenReynolds > > spock: http://www.spock.com/ > user3c4282p51k10169012ck4cc82ss12k273757s00 > > _______________________________________________ > 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/20081117/36f92f06/attachment-0001.html From lawrence at altlawforum.org Mon Nov 17 23:36:15 2008 From: lawrence at altlawforum.org (Lawrence Liang) Date: Mon, 17 Nov 2008 23:36:15 +0530 Subject: [Commons-Law] Fair use In-Reply-To: <6F771CC9-0562-4AC4-844F-2499CF5B1A53@aldermangroup.com> References: <43D6201B.F4B5F62E@RealMeasures.dyndns.org> <4B51D0DB-BBEC-400C-9A9D-55195FCE22B5@aldermangroup.com> <4785f1e20811170742m4aabddc1x79f079cbc827a479@mail.gmail.com> <6F771CC9-0562-4AC4-844F-2499CF5B1A53@aldermangroup.com> Message-ID: Hi Ren While the current Sec. 52 (1)(a) does not cover cinematograph film, I absolutely agree with you in principle that it falls within the spirit of fair dealing, and apparently so does the drafting committee of the copyright amendment since in their proposed amendment, they have now extended Sec. 52(1)(a) to films and sound recordings I had written a note some time ago which is not about the use of clips in a presentation (obliquely covered for classroom contexts in 52(1)(i)), but about use of pre existing clips by film makers which may be of some interest nonethelesssion. Lawrence * >From Note to Film Makers* First clarification: All the myths around the amount of time that is allowed while using music or film, for instance 10 seconds, 20 seconds, are all myths and not founded on law. Though it has become somewhat of a de facto position as a result of usage. So what is the position in law? 1. The Copyright Act defines various classes of work that may be granted copyright protection. The first class of works includes literary works, artistic works, dramatic works and musical works. It also protects cinematograph films and sound recordings, which could be considered the second class. The Act then goes on to define an entire regime of rights, obligations and exceptions for these works. The point to note, however, is that it treats the first class of works differently from the second, and that is where the genesis of the confusion lies. 2. The copyright owner is then granted an entire range of rights (Sec. 14) which include the right to reproduce, the right to communicate the work to the public, etc. 3. The ordinary way to use something that is copyrighted is then to seek permission. 4. However, there also exists an exception to all of this in the form of the principle of 'fair dealing' or fair use in Sec. 52 of the Act. This is basically the defence that allows people to make reasonable usage, etc. without violating the right of the copyright holder. The most significant provision is Sec. 52 (l) (a) which allows for (i) private use, including research; and (ii) criticism or review, whether of that work or of any other work. The phrases criticism and review are critical since in the case of literary works, artistic works, etc. they would include using extracts, etc. which is reasonable. There are also a number of tests that have emerged from case law on what would amount to a fair or reasonable use (These include nature of use, amount that is used, etc.). This provision is however, not applicable to cinematograph films or sound recordings. 5. The only exception in Sec. 52 for cinematograph films is the ability of educational institutions to show the film to its students and staff. There is a whole range of exceptions for sound recordings but not of the sort that filmmakers will be interested in. They relate more to the ability to make version recordings, etc. So what happens when there is this Bermuda triangle in the law on cinematograph films and sound recordings? You could take an approach of a 'strict interpretation' in which case the copyright owner could argue that nothing is allowed. This would be based on a cumulative reading of Sec. 51 with Secs 2(f), 2(ff) and 14(d). Important to note that 14(d)(1) includes a photograph of any image forming part thereof; Alternatively, you could have a liberal reading of the Act to then argue that as per Sec. 14 the only rights that accrue to the owner of a cinematograph film are the rights: 1.To make a copy of the film, including the photograph of any image forming part thereof; 2. To sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether such a copy has been sold or given on hire on earlier occasions and 3. To communicate the film to the public. All of these rights deal with the work as a whole and not with a part of the work, such that if someone uses a clip then no right is violated. This is however a slightly risky approach, since the courts in their reading could say that it is not reproduction in full since it includes making any aimge forming part thereof, and also as long as there is no exception provided in Sec. 52 for cinematograph films, then it has to be considered to be excluded. Unfortunately in India we do not have any case law precedent to back a 'fair use' argument for cinematograph films as yet. Fortunately, there are a number of cases from the UK and the US which do exist on the matter. In the absence of any Indian precedent, courts in India have always relied on US and UK precedents. Then of course there is the 'permission' route, which is to seek permission from the owner of copyright to use the material. There are three things that may happen: 1. You get a no strings permission. 2. You get permission as long as you pay royalty. 3. You are denied permission (this will lead to a whole range of interesting possibilities both from the Copyright Act and from the right to freedom of speech and expression, but I wont go into the details here). The Copyright Act does have provisions for 'compulsory license' when the materials are denied circulation in the public domain. So my suggestion would be this: Filmmakers should not be worried about using pre-existing material, if it is incorporated as part of some new work, provided they take reasonable care to ensure that it is not a very long clip (again this is subjective determination and there are no hard and fast rules). To provide an example, even the use of a small portion of the main riff of Deep Purple's Smoke on the water may be considered infringement while a much longer use of a section which is not the major riff may be considered alright. To reiterate, there is no basis for the assumption of the time that is allowed. If one were to go by the strict interpretation of the law, then it would make the life of most filmmakers rather miserable and this area is very similar to freedom of speech cases and there will only be clarity if there are test cases. This is particularly true when you are denied permission, and you go ahead and use anyway. The line between copyright and censorship is very thin here. 2008/11/17 Ren Reynolds > > What is the fair use that is being claimed? The screening of copyrighted > and pre-recorded video clips, or the making of the video clips incorporating > copyrighted images (WoW, etc.)? > > > Screening of pre-recorded clips. Youtube and other places have clips made > my either the virtual world companies for promotional purposes or clips that > players / users have created in the course of using the virtual world. They > are being put together in a small montage of up to 30s chunks simply to > illustrate to delegates attending a given session that have never seen a > virtual world, what one looks like. > > I believe different parts of the fair dealings section (section 52 of the > Indian Copyright Act ) would apply to > the two situations. If you are making the video clips elsewhere, then > wouldn't the fair use/dealing law of that jurisdiction apply? Because, then > you'd be the creator of the "cinematograph film" and be the owner of the > copyright therein. > > > Well typically this would be the Machinema case where I think that a > virtual world provider would suggest, under EU / US law that it's a > derivative work - which in the case that the machinema is being used for a > commercial purpose is probably fair. > > However, do look at s.52A(2) of the act too. Hope that helps. I'm looking > forward to seeing that video at IGF. > > > I'll take a look, thanks > > > I should be at the whole of the IGF. I'm going to Delhi for the first time > on the way. I'm representing the think tank I recently formed; the virtual > policy network, that looks at public policy and virtual worlds and would > be interested in meeting up with any Indian groups interested in the same > areas: IP is one of them. > > > > ren > > > W: http://cis-india.org > T: +91 80 40926283 > > > On Mon, Nov 17, 2008 at 19:20, Ren Reynolds wrote: > >> I've lurked on this list for ages but am not sure that this is an >> appropriate use of it. >> >> I'm coming to India for the first time this year to present at the >> Internet Governance Forum in Hyderabad, I hope to show a short series >> of clips of virtual worlds such as World of Warcraft. It's my belief >> that showing clips to a audience at a private meeting is covered by >> 'fair use' which I think obtains under Indian law. What's more, given >> the way that Virtual World companies try to use some what spurious >> claims to IP to control users of their system I feel a duty to >> exercise my fair use rights as a matter of principle. >> >> However I am un-clear on this as a matter of India law and was looking >> for pointer so I can make an un-ambiguous statements of my rights. >> Could anyone on this list provide me a pointer to statue and case law >> that might support my position. >> >> >> ren >> >> >> >> --8<-- >> >> web: www.renreynolds.com >> >> Think Tank: www.virtualpolicy.net >> >> blog: terranova.blogs.com >> >> >> m (UK): +44(0) 7778 285 273 >> >> m (US, only when I'm there): +1 646-417-0641 >> >> >> Skype: RenZephyr >> >> Twitter: >> twitter.com/RenZephyr >> Facebook: www.facebook.com/profile.php?id=734676997 >> >> Linked-in: www.linkedin.com/in/renreynolds >> >> aim | bebo | club penguin | cyworld | del.icio.us | EvE | gax | gia | >> habbo (UK) | iLike | jaiku | last.fm | LOTR (EU: Laurelin) | >> MapelStory | pownce | profilactic | rupture | skype | secondlife | >> there.com | tumblr. | twitter | upcoming | wacoopa | XBox Live: >> RenZephyr >> >> facebook | flickr | MySpace | openID | plaxo: Ren Reynolds >> WoW (US Ettrig): >> Cabot >> >> Moshi Monster: www.moshimonsters.com/monsters/renreynolds >> dopplr: www.dopplr.com/traveller/RenReynolds >> >> spock: http://www.spock.com/user3c4282p51k10169012ck4cc82ss12k273757s00 >> >> _______________________________________________ >> 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/20081117/6199b13b/attachment.html From sollybenj at yahoo.co.in Wed Nov 19 04:00:34 2008 From: sollybenj at yahoo.co.in (solomon benjamin) Date: Wed, 19 Nov 2008 04:00:34 +0530 (IST) Subject: [Commons-Law] On Lewis Hyde, author of 'The Gift' meets Santos' subaltern cosmopolitan legality In-Reply-To: Message-ID: <256569.57858.qm@web8904.mail.in.yahoo.com> Dear Lawrence and Friends, Thought this article in the NYT mag. on Lewis Hyde author of 'The Gift' would be of wider interest! (Lawrence, thanks for the book, now being avidly re-read!). Check out: What Is Art For? By DANIEL B. SMITH Published: November 14, 2008 at: http://www.nytimes.com/2008/11/16/magazine/16hyde-t.html?pagewanted=1&_r=1 '.. After the lecture, as we walked across the darkened campus, I mentioned to Hyde that I had found Lessig’s talk to be logical and well crafted. “A little too well crafted, if you ask me,” Hyde said. This took me by surprise — Hyde is a polite man who rarely speaks critically of others — and I later asked him to elaborate. “Look, Lessig is a lawyer,” he said. “I like him, I think he’s solid. But it’s a very particular way of thinking.” Hyde himself makes use of the Creative Commons, yet there’s a formality to the setup that troubles him. “All of the C.C. licenses use the lever of the law,” he said. “They have the assumption of private ownership behind them. So Lessig, in a certain sense, is confining himself to one slice of this stuff, which is not as capacious as a true commons would be.” Would this pose two intersects towards 'an urban revolution'? 1) First, in mostly small firm based industrial production that customize commodity lines via an intensive copy culture that spurs innovation that includes reverse engineering. The IPR centered 'creative class' arguments fall flat! 2) Second, in their transnational urbanization: Wider connections to a commons (seen in Hyde's perspective) via small trade trans-national networks that connect Chennai, Bangalore and Yiwu in Eastern China. Opened up via such 'porous legalities', into what Santos et al term 'Subaltern cosmopolitan legality' (Santos de Sousa & Rodriguez's Law and Globalization from below). If situations destabilize those 'in power' and associated 'property', than perhaps something goes on. Perhaps the parallel to Disney would be Daniel Chow from the Ohio Univ. law dept. Hired by Procter and Gamble, Chow investigated piracy and argues for it's link to 'global terrorism'. This link is familiar story. See his statement to the US senate at:n http://www.cecc.gov/pages/roundtables/051605/Chow.php Whats perhaps more fascinating is his argument on why a crackdown on piracy is made difficult via it's urbanization -- perhaps another revolution? See: http://moritzlaw.osu.edu/faculty/digest.php?digestID=57 And for a fascinating view of a commons city, in all it's unsettling fluidity, that seems straight out of my own memories of 1990's East Delhi, see: Chinese instant cities http://ngm.nationalgeographic.com/2007/06/instant-cities/hessler-text Cheers Solly Add more friends to your messenger and enjoy! Go to http://messenger.yahoo.com/invite/ From pranesh at cis-india.org Wed Nov 19 19:45:28 2008 From: pranesh at cis-india.org (Pranesh Prakash) Date: Wed, 19 Nov 2008 19:45:28 +0530 Subject: [Commons-Law] IsoHunt seeks pre-emptive ruling on legality of Bittorrent search engines Message-ID: <4785f1e20811190615y5475cbe8p8324877dbee65c81@mail.gmail.com> Since this is news from Canada, it includes insightful comments by Prof. Geist: "The interesting question is how will the court characterize (Fung's [IsoHunt's owner] arguments), because the broader legal implications for copyright and for many parties - search engines and the like - could be affected by the outcome of this case." From: http://ca.news.yahoo.com/s/capress/081105/technology/technology_music_copyright_battle Canadian owner of popular downloading site seeks court ruling on its legality Wed Nov 5, 4:11 PM By Michael Oliveira, The Canadian Press TORONTO - The Canadian owner of one of the Internet's most popular sites for downloading everything from music to porn is pre-emptively asking the Supreme Court of British Columbia to rule on whether he is violating the Copyright Act. Gary Fung, 25, of Richmond, B.C., runs the IsoHunt.com search engine for BitTorrent files, which are commonly used to download and upload virtually every type of copyrighted material, including music, movies, computer software and e-books. The site currently links to more than 1.5 million files online, such as the latest chart-topping CDs, video games, DVDs and even movies currently in theatres. Isohunt.com regularly cracks the Top 200 list of the web's most popular sites, according to analysts at Alexa.com. "It serves a need that had not been served before, especially with the emergence of BitTorrent becoming a dominant (downloading) protocol," Fung said of the site's popularity. Fung has been named in a lawsuit launched in 2006 by the Motion Picture Association of America. After receiving letters last May from the Canadian Recording Industry Association demanding he take down links to copyrighted material, Fung decided he would ask the courts to rule on whether his site breaks Canadian law. "We filed the court documents because we were threatened by CRIA. Essentially they're saying that all we do is infringe on their clients' copyrights," he said. The letters Fung received argued his site is "responsible for causing, authorizing and contributing to a staggering amount of illegal music downloading, uploading and file sharing." The letters also state Fung could be responsible for copyright infringement damages of up to $20,000 per song. But Fung insists his search-engine website doesn't break any laws since it simply links to copyrighted material online but doesn't host any of it. He notes that Google can also be easily used to find BitTorrent files. "IsoHunt does not consider that its operations ... infringe or violate in any way the Copyright Act and therefore seeks the protection of ... (the B.C. court) in the form of declaratory relief in relation to clarification of its legal rights in respect of its operation," Fung states in his petition to the court. IsoHunt.com has a policy of taking down links to files when contacted by copyright owners and has removed more than 50,000 links since 2004, Fung said. It's similar to the policy that was imposed upon the makers of the Napster downloading software when they were sued for copyright infringement, Fung said. He added that he invited CRIA to send in requests to remove links but the association "has refused to do that." CRIA said it would not comment on the case. Michael Geist, a copyright expert at the University of Ottawa, said IsoHunt.com's take-down policy is similar to what most BitTorrent download sites do in an attempt to avoid legal action. "Many, many sites argue that there's simply too much content posted (on their sites) to actively monitor so they're entitled to presume their service is being used lawfully" until a copyright holder complains, he said. "And that's when their potential liability kicks in if they take no steps to address it." The case could have a broad impact and affect a variety of Canadian websites, and not just BitTorrent download sites, Geist said. "The interesting question is how will the court characterize (Fung's arguments), because the broader legal implications for copyright and for many parties - search engines and the like - could be affected by the outcome of this case." Fung said he might have to take down his site if the B.C. court case goes against him. Donations from the site's users and advertising revenue are paying his legal bills, he said. "If we lost the case, it'd depend on what the judgment is. If it involves damages we can't pay, then I'll have to shut down the site," he said. From pranesh at cis-india.org Fri Nov 21 00:04:16 2008 From: pranesh at cis-india.org (Pranesh Prakash) Date: Fri, 21 Nov 2008 00:04:16 +0530 Subject: [Commons-Law] Monty Python gets it right Message-ID: <4785f1e20811201034x7b06820fy9c7e54dd3976b514@mail.gmail.com> Dear All, The Brit comedy troupe Monty Python (or rather, the surviving members) now have a YouTube channel: http://www.youtube.com/montypython From http://pythonline.com/special_announcement ---- MONTY PYTHON GOES TO YOUTUBE! In a bold move, Monty Python announces their partnership with YouTube, creating the first official Monty Python Video Channel on the internet. To all the fans who've for some unknown reason have sat, progressively losing their eyesight, squinting at their computer screens, watching The Dead Parrot Sketch, or missing the climax of The Fish Slapping Dance all because you're too damned cheap to buy the shiny new DVD box set , you who have gawped at grainy bootlegged Python snippets only to be left unfulfilled by the ripped-off rubbish posted on YouTube... Well loyal Python fan, strain no longer! Now you can save your eyesight and join the Monty Python YouTube Channel, where you can enjoy high quality Python lounging in your knickers. Yes, that's right, you don't even have to leave the comfort of your laptop to join the Flying Circus. Now with all of that free time we've saved you gathering your favourite Monty Python videos you can get a job and buy something from our handy links like these these and these you silly twit. Right. Off you go then! ---- Also see the ever informative, interesting, funny, and insightful comments over at /. http://entertainment.slashdot.org/article.pl?sid=08/11/19/201255 Cheers, Pranesh -- Pranesh Prakash Programme Manager Centre for Internet and Society T:+91 80 40926283 W: http://cis-india.org From pranesh at cis-india.org Tue Nov 25 13:09:20 2008 From: pranesh at cis-india.org (Pranesh Prakash) Date: Tue, 25 Nov 2008 13:09:20 +0530 Subject: [Commons-Law] EU Culture Council rejects French three-strikes proposal Message-ID: <4785f1e20811242339p191e4eedo6ac9ab5b9b563784@mail.gmail.com> Dear All, Some important developments from the Council of the EU (the 2905th Education, Youth, and Culture Council meeting) , in the form of a resolution titled "Council Conclusions on the development of legal offers of online cultural and creative content and the prevention and combating of piracy in the digital environment": On TPMs: "Although the use of technical systems for protection (Technical Protection Measures (TPM)) or rights-management information (Digital Rights Management (DRM)) may in some cases, while taking due account of the principle of personal-data protection, contribute to protecting and managing rights in the digital world, the lack of interoperability or transparency of these systems creates insecurity for consumers and limits their use of the content offered by the various platforms;" On balancing of rights and proportionality: "The need to ensure a fair balance between the various fundamental rights, particularly the right to personal data protection, freedom of expression and information and the protection of intellectual property, and to seek, when implementing Community law, solutions in compliance with the general principles of Community law, in particular the principle of proportionality." Glyn Moody makes much of the ordering of the rights in that sentence. ---- From Glyn Moody: http://opendotdotdot.blogspot.com/2008/11/three-strikes-and-youre-out-struck-down.html 21 November 2008 "Three Strikes and You're Out" Struck Down Wow. I was convinced that the meeting of EU culture ministers yesterday was going to end badly; I was wrong - and I take my virtual hat off to them: EU culture ministers yesterday (20 November) rejected French proposals to curb online piracy through compulsory measures against free downloading, instead agreeing to promote legal offers of music or films on the Internet. The EU Culture Council pushed yesterday (20 November) for "a fair balance between the various fundamental rights" while fighting online piracy, first listing "the right to personal data protection," then "the freedom of information" and only lastly "the protection of intellectual property". The Council conclusions also stressed the importance of "consumers' expectations in terms of access […] and diversity of the content offered online". No mention was made of a gradual response to serial downloaders of illegal cultural material, as foreseen by the French authorities. I think this is very significant, because it indicates that the culture ministers and their advisers are beginning to understand the dynamics of the Net, that throttling its use through crude instruments like the "three strikes and you're out" is exactly the wrong thing to do, and that there are serious issues to do with freedom of information at stake here that cannot simply be brushed aside as Sarkozy and his media chums wish to do. Judging by the generally sensible tone of the meeting's conclusions , the optimist in me starts to hope that the tide is finally turning. However, I do wonder whether this saga is finished yet, or whether the Telecoms Package still has some teeth that it can bare.... Update: Following up that thought, here's a letter I've sent to the relevant UK ministers who will be involved in a crucial meeting on the Telecoms Package this week (24/11/08). ---- /. thread on the above: http://tech.slashdot.org/tech/08/11/23/1952248.shtml Regards, Pranesh -- Pranesh Prakash Programme Manager Centre for Internet and Society T: +91 80 40926283 W: http://cis-india.org From lawrence at altlawforum.org Fri Nov 28 15:59:08 2008 From: lawrence at altlawforum.org (Lawrence Liang) Date: Fri, 28 Nov 2008 15:59:08 +0530 Subject: [Commons-Law] Words After Violence Message-ID: The madness of what has happened in Bombay leaves us speechless, even as the media din around evacuates words from their meaning. So it only appropriate that we borrow words to remind us, in the midst of death, what it means to live Lawrence On January 11, 1998, unidentified gunmen entered a movie theater and a small mosque in Sidi Ahmed near Algiers and massacred 120 men, women, and children at close range during Algeria's ongoing civil conflict. *Disbeliever* **By the limping of the people of Iraq By the sound of frantic running in Qana, in Kosovo By the men and boys of Hama massacred By the swollen bodies in a river in Rwanda and Afghani women and the writers of Algiers, I am a disbeliever in everything that refuses to kiss full on the lips the ones still living and receive them into the bosom of the self, no matter the religion or the nation or race I am a disbeliever in everything that does not say "How was the movie? I love you" I need a body outside my life that can travel and kneel on the sidewalk beside a movie theater in Algiers over the bodies of the supple children who will never be my children's playmates or marry them over the bodies of the men and the women who will never write a letter, will never phone me from Algiers: "How was the movie? I love you. I love you." I need time outside this history where I can whisper in the ear of each of them, By God, you will never be forgotten By God, I will make sure the world buries its face in your beautiful hair, sings to you, learns your name and your music, lifts you up in the crook of its arm like a gift I am a disbeliever in everything but the purity of the bodies of the men and women–with or without the veil, with or without the markings of the right identity– in everything but the suppleness of children I am a disbeliever in every scripture in the world that leaves out "How was the movie? I love you. I love you." *Mohja Kahf* -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20081128/66faa3c0/attachment.html