From jeebesh at sarai.net Fri Apr 1 00:53:58 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Fri, 01 Apr 2005 00:53:58 +0530 Subject: [Commons-Law] Media lawyer blog from Grokster hearing Message-ID: <424C4E4E.1070002@sarai.net> *Media lawyer's blog from Grokster hearings* The Media Access Project's Harold Feld attended yesterday's Grokster hearing and has blogged his impressions of the proceedings: http://www.wetmachine.com/index.php/item/255 Tales of the Sausage Factory: My Day With the Supremes There are advantages to being a member of the Supreme Court Bar. One is, you get to go and hear the arguments from the Supreme Court Bar section. Guess what I did today! While you will get tons of info from other websites, this is probably the only place you will see someone say that Justice Rehnquist now sounds like a bad combination of Darth Vader and the Emperor from "Return of the Jedi".... O.K., it's not nice to make fun of people recovering from thyroid cancer. But it was still funny to hear the Chief Justice of the Supreme Court speak into the microphone with this Darth Vaderish wheeze and say things like "Will our decision release Grokster all over the world?" I swear, he could have thrown in a manical laugh and it would not have been out of place. Another thing that occurred to me is that if people ever could listen to Supreme Court arguments via streaming or traditional media, it would make very little sense to non-lawyers. For example, you get exchanges like: Scalia (sarcasticlly): But doesn't this come to us under summary judgment? Lawyer: Yes, but under rule 56(b) we are entitled ... Scalia: Surely you aren't accusing us of applying 12(b)(6)? [laughter from Supreme Court Bar section, total confusion in regular audience section] Anyway, today had two critically important cases for the evolution of internet technology. One deals with peer-to-peer technology and the other deals with regulation of broadband. The first is MGM v. Grokster. Unless you are my mother, you know that Grokster is a peer-to-peer or "P2P" file swapping system that allows you to swap music with others. Much like the free love of the 60s, this makes you feel good by satisfying your natural desires and sticking it to "the man." At the same time, it lets you download some amazing viruses into your hard drive. Several years ago, the music industry sued Grokster to shut them down. Grokster replied that because P2P has non-infringing uses (you can use it to do legal things, not just steal music), the music industry has no case against Grokster. This relies on a case called Sony v. Universal Studios, also known as the "Betamax case" or the "Sony" case, in which the Supreme Court held that you can't sue anyone for making something that lets you infringe someone's copyright if it has non-infringing uses as well. Instead, argued Grokster, the music industry should sue the individuals swapping music, the "p"s, rather than the people providing the "2." Much to everyone's surprise, Grokster won in the district court and in the Ninth Circuit Court of Appeals. Then the Supreme Court agreed to to hear the case. Up for grabs is whether developers of peer-to-peer or other technologies put themselves at risk for major lawsuits. The second case is FCC v. Brand X Internet Services. I wrote about this last year when we won at the Ninth Circuit. Briefly, the law requires a "telecommunication service" to follow certain rules. Notably, they have to interconnect with networks and not mess with content. Is supplying DSL or cable broadband a "telecommunication service?" If it is, cable will have to open its networks to rival ISPs, just like DSL now does. Or is broadband an "information service", which would allow the cable or DSL provider to mess with content without telling you? In 2002, the FCC said "information service." We said wrong and took 'em to court in the Ninth Circuit and won. Annoyingly, the FCC asked the Supreme Court to review that decision, and the Supremes agreed. So on the same day, the Supremes heard argument on the applications layer and the physical layer of the Internet. Big day, and big crowd. Of course, most folks were there for the Grokster case, including the EFF and open source gang who camped out on the steps all night. I, OTOH, am a distinguished member of the communications bar and a member in good standing of the Supreme Court Bar because of my rigorous legal and ethical qualifications (i.e., my $100 registration check cleared). So I arrived at 7:30 a.m. hoping to get seats in the section reserved for S.Ct. bar members. Even the line for lawyers was long. We waited until 10 a.m. to get in, and I had to settle for the "lawyers lounge" overflow seating. I guessed, however, that most folks would leave after the Grokster case, so I grimly hung on. Besides, this let me hear the argument even if I couldn't see it. Unless you're press, you can't take notes at the Supreme Court, so this is all from memory. The day started with an unusual item: the new Attorney General, Alberto Gonzales, submitted his credentials to the Court and was welcomed as the Government's new chief legal officer. "Welcome," wheezed Rhenquist, in his Darth Vader/Evil Emperor voice. "I know you will serve Us well. MwaHAHAHAHAHA." O.K., no evil laugh. The next item was announcing the opinion in City of Sherill v. Oneida Indian Tribes, in which the Supreme Court held that the Oneida Indian Tribe could not reclaim tribal land by buying their historic land on the open market and then refusing to pay state and local taxes as a matter of sovereignty. I mention this because Tom Goldstien, the lawyer who represented us in the Brand X case, read through the slip opinion and actually cited stuff as precedent during oral argument -- much to the amusement of the Court and us lawyers. I gotta admit, this is probably a record for "shortest time between publication of a slip op and citation as authority by counsel in another case." Finally, the Court got down to cases, starting with Grokster. Don Virelli led off for the recording industry. He began with the assertion that Grokster's P2P software has no legitimate uses. The justices reacted skeptically. "Didn't the court below find lots of legitimate uses, such as distribution of public domain works or distribution of works authorized by the rights holders, even if the vast majority of traffic was arguably infringing?" Virelli stuck to his guns, thus falling prey to the trap that has undermined industry so many times in this fight: they over sell. Scalia then started in on innovation: "But what about inventors? How will they know what people will use this for? Do they get a free ride for a few years to see if the predominant use is infringing or non-infringing?" Again, Virelli went too far. "In reality, these people don't get sued just for inventing stuff" he claimed, while the entire bar section rolled its eyes. Again, the Justices weren't buying. "Inventors need certainty they won't be sued or they won't invent," said Breyer. The court showed sympathy for one argument however, the idea that Grokster was building its business on illegal activity deliberately. "What should a standard be for 'active inducement'?" Ginsberg asked. "Should the case go to trial, rather than be decided on summary judgment?" Virelli, of course, argued that the conduct was so blatant the Court could have the Grokster people executed on the spot and their heads mounted on pikes before the Court as a warning to all others. Then the Grokster folks were up to bat. Unfortunately, I think Richard Taranto, who argued the case, stumbled a bit at the opener. He got bogged down in the procedural posture of the case and what remedies the music people might have for knowing infringement by Grokster. Ultimately, he got back on track to press his key point-- peer-to-peer is not just a way to willfully blind Grokster to illegal file-sharing activity. It is an important technological innovation that empowers users to communicate directly. While the Supremes were all for that, they were still bothered by the fact that Grokster was making money from wholesale violation of the copyright laws. Taranto tried to argue that this was indistinguishable from _Sony_, where Sony made most of its money from the sale of tapes for illegal archiving of shows despite the fact that the legitimate purpose, "time shifting" by recording shows to watch later, did not require the sale of multiple tapes. But the Court clearly did not accept the analogy. Taranto also tried to argue that the _Sony_ standard was clear that as long as any non-infringing use existed, it didn't matter if the overwhelming majority of users used the technology to swap copyrighted music. Again, the Court was skeptical. "If our standard was so clear" asked O'connor, "why did we need to go on for 13 pages after we wrote the sentence you site?" ("Because you talk too much, Bitch" was probably the wrong answer here, so good thing I wasn't arguing.) Bottom line on Grokster: I think the Court is likely to affirm the basic idea of _Sony_ that you can't sue a manufacturer or distributor of a technology for copyright infringement if the technology has non-infringing uses. But I also think they will remand and allow the RIAA to pursue a claim for "active inducement" to infringe based on Grokster's conduct. Moving on to Brand X. I lost about ten minutes worth of argument as I moved from the lawyer's lounge to the hearing room. Government was up first, defending its decision in 2002 to declare cable broadband an "information service" rather than a "telecom service." Justice Scalia turned out to be bothered by the same thing I was: "You guys keep saying why this is a great policy, but that's not how statutes work. First you need to figure out what the statute says and apply the definition. THEN you get to figure out policy within the limits of what Congress has delegated." The government and the cable people argued that the FCC had properly applied the definition. "It's as if the statute regulates the sale of butter, and we are selling cakes," offered the cable guy. "But the basic service hasn't changed," replied Scalia and several of the other justices. "Could cigarette manufacturers evade the regulation of cigarettes by puting cigarettes in dolls and selling them as 'smokies?'" O'connor also pressed on convergence. "Under your argument, anyone can decide to avoid regulation just by offering email as an addition to the basic telecom service." Bryer went further. He asked the cable guy to list what made cable broadband different from a telecom service. "It has a domain name system, without which the user can't figure out where to go." "O.K.," replied Bryer. "I have a phone. Without the 'phone numbering system' it doesn't know where to go." "It takes information from one computer, transforms it, and brings it to your computer, where it transforms it again into a useable form." "I call my answering service and get my messages, which the phone retrieves and covnerts at the receiver into sound." Tom Goldstien then argued for us, and was brilliant. He masterfully took the justcies through the statutory definitions, explaining how the FCC had blown it. He did get some push back from Rhenquist and Breyer. Breyer asked "the statute says a telecommunications provider is one who 'offers' a telecom service. The cable company only 'offers' the bundle. Why can't the FCC rely on that?" Goldstien replied that, dopey FCC, they had actually neglected to rely on that point in their Order. Too bad the Solicitor General's office is so much smarter at reading statutes. (Actually what he said was "Chennery" which caused sage nods from the Bar section and a "Wha?" from the regular people.) Even assuming the FCC had relied on this argument, the statute makes it clear that you offer an information service _through_ a telecom service. That cable providers bundle the two and require you to take both does not somehow combine them into something new and unregulated. "This is all very complicated," said Rhenquist. "Shouldn't we just defer to the expert agency?" No, replied Goldstien. Congress was explicit and set limits on what the agency can do. Congress also left a safety valve, in the form of Section 10 of the Act, which allows the FCC to forbear from regulation if it can meet certain statutory criteria. Bottom line: I think we get an even bigger win here than we did in the Ninth Circuit. Potentially, this will not only require cable to open their broadband systems, it will prevent the FCC from deregulating DSL and reverse the recent decision allowing telcos to bundle DSL with phone service. Odds are good the Supreme Court will decide neither case until early summer. As always, Stay tuned . . . . posted at 17:17:00 on 03/29/05 by Harold - Category: Tales of the Sausage Factory From jeebesh at sarai.net Fri Apr 1 01:02:42 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Fri, 01 Apr 2005 01:02:42 +0530 Subject: [Commons-Law] Cooments on Orphan works Message-ID: <424C505A.3090302@sarai.net> James Boyle comments i posted ealier....here is the links to many many others.... http://www.copyright.gov/orphan/comments/ (interesting ones suggested by http://www.boingboing.net/) • Lessig (for Save the Music and CC): • Internet Archive (Note: The Internet Archive's comment has some particularly interesting suggestions, including using orphan works under the Creative Commons by-nc-nd license.) • FreeCulture.org • Public Knowledge • Library of Congress • Microsoft • Copyright Clearance Center (copyright.com) • RIAA • Elizabeth Townsend (Academic Copyright) • MPAA • ASCAP • Samuelson Clinic • Consumers Electronic Association From jeebesh at sarai.net Fri Apr 1 01:15:05 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Fri, 01 Apr 2005 01:15:05 +0530 Subject: [Commons-Law] Camping Out for the Grokster Case Message-ID: <424C5341.2040006@sarai.net> http://www.wired.com/news/digiwood/0,1412,67061,00.html Camping Out for the Grokster Case By Katie Dean 12:07 PM Mar. 29, 2005 PT WASHINGTON -- Forget Star Wars premieres. A seat at the MGM Studios v. Grokster Supreme Court hearing Tuesday morning was the hottest ticket in town. Gray skies, with intermittent rain and cold, didn't deter a group of staunch file-sharing supporters -- as well as a number of hired line-standers -- from queuing up starting at around 2:30 p.m. Monday to secure a seat in court for the landmark copyright case. "I feel very strongly (about) the case," said Nick Disabato, a graduate student in information science who drove up from Chapel Hill, North Carolina, and was first in line. "I share music with my friends constantly and that's how I get a lot of my recommendations. Ever since I started downloading MP3s, I've purchased three times more music. I haven't purchased as many dud albums." Some observers consider this file-sharing case, which will determine whether Grokster and StreamCast Networks should be liable for the copyright infringement of their users, to be the most important copyright case since 1984's Sony Corp. of America v. Universal City Studios. Then, the court ruled 5-4 that Sony's Betamax videotape recorder was a legal device because it was capable of "substantial non-infringing uses." The ruling paved the way for the development of the thriving home video and DVD market. Many standing at the foot of the Supreme Court building hoped the justices would preserve that landmark decision. Supporters passed out "Save Betamax" shirts courtesy of the Consumer Electronics Association . Old Betamax tapes from the 1980s were handed out as inspirational souvenirs. Those hoping to be in the gallery came prepared. A few brought comfy folding chairs with canopy tops to block out the rain. Others had sleeping bags, hats, wool socks, gloves, tarps, a tent, umbrellas and blankets. One brought a video camera to film the experience for a documentary on copyright reform . Some chose to stash their court clothes a few blocks away in a hotel, or planned to have friends deliver a respectable change of attire. For entertainment, the file-sharing faithful brought laptops and books. Disabato also brought an iPod shuffle loaded with controversial music from Dangermouse, a DJ known for causing a kerfuffle when he illegally mixed the Beatles' White Album with Jay Z's The Black Album. He also included a bootleg mix called "Piracy Funds Terrorism," by MIA and Diplo, on his iPod. He brought some small speakers to broadcast the music to others in line but wasn't sure if the security guards around the court would let him use them. As the night wore on, Seth Schoen, staff technologist for the Electronic Frontier Foundation , ordered five pizzas to be delivered to the Supreme Court. Others took turns going for coffee. Peer-to-peer software engineer Francis Crick (the grandson of Francis Crick , one of the discoverers of the double-helix structure of DNA) made the trip from Los Angeles. He said if the entertainment companies succeed in shutting down peer-to-peer networks, the case will impair the development of new technologies in the United States. He said his opinion on the case is "very pro-American" for that reason. "I feel split down the middle," said Beatrice Murch, who made the trip across the country from San Francisco with her husband. She said some of her relatives work in the movie industry and she understands "where the content providers are coming from." At the same time, she said, "these guys are trying to squash technological innovation." "I definitely feel that peer-to-peer systems have legitimate uses. Copyright law is out of whack and needs to be changed," Murch said. By 9 p.m. Monday, there were about 40 people in line to fill the estimated 50 available seats in court. Other space is reserved for the press and members of the Supreme Court bar. Hired line-standers were paid between $200 and $500 for the night to hold spaces for various people with an interest in the outcome of the case, according to one line-stander who declined to give his name. People can be sent to the back of the line if they are caught swapping places with a hired line-stander at the last minute. Those who pay the personal placeholders usually show up an hour or two before the court opens. But many of those lined up Monday were willing to wait themselves, even in the cold and rain. "It's a once-in-a-lifetime experience," Murch said. "I'm not going to melt." End of story From jeebesh at sarai.net Fri Apr 1 01:20:08 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Fri, 01 Apr 2005 01:20:08 +0530 Subject: [Commons-Law] Intellectual Property and Development Message-ID: <424C5470.90400@sarai.net> *anybody in know about this working groups meeting? http://www.uspto.gov/ Communiqué from the Working Group of Industrialised Nations on Intellectual Property and Development * At a meeting hosted by the European Patent Office on March 21 - 22, 2005, the Working Group of industrialized nations on intellectual property and development issued the following statement: The Working Group of industrialised nations on intellectual property and development set up by the meeting in February 2005 at the United States Patent and Trademark Office in Alexandria met at the European Patent Office in Munich on 21 and 22 March 2005. The meeting was attended by 53 delegates from Austria, Belgium, Canada, the Czech Republic, Denmark, the European Commission, the European Patent Office, Finland, France, Germany, Hungary, Italy, Ireland, Japan, Lithuania, Luxembourg, the Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Spain, Sweden, Switzerland, United Kingdom and the United States of America. The meeting reaffirmed its support for the World Intellectual Property Organization’s long-standing work in the area of development-related aspects of IP. The meeting recognised that we should do more to ensure that capacity building is targeted to the expressed needs of developing countries and that we should adopt a “demand driven” approach. We should find ways in which development partnerships can be created, shared and monitored to avoid duplication and assess effectiveness. Capacity building covers not only the building of IP expertise and resources, but should include ensuring that IP systems in developing countries function to facilitate growth and development. The meeting noted the need to go beyond issues of capacity building and deepen our understanding of the relationship between IP and economic, social and cultural development. The meeting also discussed existing proposals, including those from Switzerland, the European Union and the United States on the disclosure of the origin/source of genetic resources and related traditional knowledge in patent applications. There was consensus to discuss this matter further within WIPO. In summary, an active meeting at which all confirmed their commitment to working together with all countries within WIPO to develop the IP system for the benefit of all and with needs of developing countries integral to our work. From prabhuram at gmail.com Fri Apr 1 13:40:17 2005 From: prabhuram at gmail.com (Ram) Date: Fri, 1 Apr 2005 10:10:17 +0200 Subject: [Commons-Law] A Collective Mistake Message-ID: <68752c9f0504010010fba00@mail.gmail.com> >From Tech Central Station(TCS) A Collective Mistake By Sylvain Charat "India has an unmatched place in providing affordable medicines to the poorest," French President Chirac recently told Indian Prime Minister Manmohan Singh. Chirac proceeded to tell the Indian leader how concerned he was that India recently amended its 1970 Patent Act to bring it in line with the country's World Trade Organization (WTO) obligations. The new legislation will make it harder for Indian companies to make cheap copies of patented Western pharmaceutical products, and Chirac is worried that this will make medicine more expensive for third world countries. Unfortunately, Chirac's statement received little attention in the media, which was busy reporting on increasing French euro-skepticism and speculating what might happen if French voters reject the European constitution in the referendum on May 29. However, the fact remains that the French president is disregarding important French and European interests by undercutting the ongoing WTO efforts to protect intellectual property rights. He is also doing the world's poor a tremendous disservice. The media in Europe and elsewhere would therefore be well advised to pay careful attention to French policies on intellectual property rights protection during the coming months. In December 2005, WTO ministers will meet in Hong Kong to discuss, among other things, the creation of an international regime for sharing the benefits that derive from using genetic resources to make products such as medicine. In a nutshell, the question is how best to make sure that areas (such as the Brazilian rain forest) that supply genetic resources also benefit from the commercial use of these resources. Two principles for benefit sharing are competing against each other: A free-market principle based on respect for intellectual property rights and a collectivist principle that would undermine the protection of intellectual property rights worldwide. France may well hold the key to which principle will emerge victorious after December's meeting. The free-market principle is to secure benefit sharing through contracts between the companies that demand genetic resources and the countries, peoples or individuals that supply these resources. The buyer and the seller can freely negotiate the terms of the contract, which ensures that both parties are satisfied. The collectivist principle, on the other hand, is to give governments a right under international law to expropriate patents based on genetic resources found within their jurisdictions. Not surprisingly, the main advocate for this approach is Brazil's socialist leader "Lula" da Silva who could wish for nothing better than an opportunity to expropriate a couple of the many patented products that might contain materials found in the vast Brazilian rain forest. The European Union will play a key role at the Hong Kong meeting in December. Given the enormous influence Chirac recently showed in derailing the Bolkestein directive for liberalization of the European services market, there is reason to fear that France will be able to tilt the EU in the collectivist direction. European journalists and politicians should keep in mind that collectivists like Chirac or Lula are making a real mistake, setting up policies based on what they see, and forgetting what they do not see. They see intellectual property rights creating benefits for pharmaceutical industries, profits that must be shared by weakening patent policy. But what they do not see is that without strong patent protection there would be little pharmaceutical research. With the present free trade system, poor countries have a real chance to benefit from research. But with a collectivist system this hope would disappear since companies are not willing to work for free. Patents protect the competitive advantage of pharmaceutical companies that invest huge amounts of money on research. It is this competitive advantage and these heavy investments that allow companies to make profits, which, to close the circle, boost research. A high level of intellectual property rights protection is in the interest of the public for two reasons. First, innovation in medicine is possible only if intellectual property rights are secured. In an Australian APEC Study Centre report called "Developing Effective Approaches to Access to Genetic Resources", Alan Oxley wrote that "the profits generated by [intellectual property patents] in fact generate the development of new and better medicines and make it possible to deliver medicines for free or at low cost to the poorest people around the globe". Second, strong patent protection is a core element for pharmaceutical research centers' decisions to locate in countries, bringing jobs and wealth along with them. Swiss giant Novartis put the Novartis Institute for Biomedical Research Inc (NIBRI) in Cambridge, Mass., in 2002. The decision was worth $250 million dollars, creating 400 jobs, and an expected 1,000 researchers hired by 2009. Imagine the effect such medical research and innovation could have in poor countries. Contrary to the current mythology, patented medicines are not outrageously expensive. "The pricing surveys published by Médecins Sans Frontières clearly show that copy ARVs (antiretroviral drugs for HIV/AIDS) made by foreign manufacturers are by no means cheaper than patented ARVs," stated Carol C. Adelman, Jeremiah Norris and S. Jean Weicher in a Hudson Institute white paper. Their conclusion: "The majority of patented drugs are less expensive." Medicine is less expensive as long as markets are open, since this allows pharmaceutical companies to reach more consumers and thus spread the cost of research on an ever increasing number of people. Erecting barriers has the opposite effect. This is the free market logic dictating that freedom of enterprise requires property rights protection. Chirac, however, openly despises free markets and proclaimed at the end of the recent European summit on March 23 that global liberalization is an economic system that cannot be sustained. He therefore instinctively supports Lula's approach in Brazil, a country that, along with India, is the biggest generic drugs producer in the world. It is worth remembering that collectivism is embedded in the French constitution. "Any property or undertaking which, in the course of its business, possesses or acquires the characteristics of a national public service or a de facto monopoly, shall come under collective ownership." That is point 9 of the preamble of the French Constitution of 1946; its importance was proclaimed again in the preamble of the Constitution of 1958, still in use. A good example: empty apartments can be requisitioned by public authorities for homeless families. The owner is not deprived of his property, but is kept from doing what he wants with it. When it comes to medicine, Chirac apparently sees pharmaceutical intellectual property as a sort of "national public service" - or even "international public service". So it naturally follows that these rights come under collective ownership. Chirac's policy aims to create an international rule thus written: "Any patent which possesses or acquires the characteristic of an international public service or a de facto monopoly, shall come under universal collective ownership." Free traders beware. Perhaps it is not so strange that some legal experts liken property rights in France to an artichoke: even if its leaves are thinned out, it still remains an artichoke as long as its heart is there. While not formally eliminated, property rights can in other words be reduced to the extreme. Unfortunately, the French president now seems bent on spreading the artichoke version of property rights to the rest of the world. Sylvain Charat is Director of policy studies in the French think tank Eurolibnetwork. -- Prabhu Ram, Max-Planck-Institut for Intellectual Property, Competition and Tax Law, MarstallPlatz 1, 80539 Munich GERMANY Tel: + 49 89 24246226 Mob: + 49 17629830521 Web: http://infoserve.blogspot.com From sudhir at circuit.sarai.net Fri Apr 1 21:10:19 2005 From: sudhir at circuit.sarai.net (sudhir at circuit.sarai.net) Date: Fri, 1 Apr 2005 17:40:19 +0200 Subject: [Commons-Law] On the Development Agenda Message-ID: Following up on Jeebesh's post on the US intervention in the Development Agenda at WIPO. The next few months at WIPO and the Hong Kong WTO meet are crucial to how international IP arrangements are likely to work out in the near future. Best Sudhir This is a multi-part message in MIME format. -- -- [ Picked text/plain from multipart/alternative ] A new entry titled 'Debate Heats Up Over WIPO Development Agenda' has been posted to Intellectual Property Watch weblog. http://www.ip-watch.org/weblog/index_test.php?p=39 Debate Heats Up Over WIPO Development Agenda by William New @ 10:32 am, 1/4/2005 Negotiators attending closed meetings at a U.N. body in Geneva in mid-April could shape the policy agenda for development and intellectual property for years to come, participants and observers say. It is not clear how the consecutive meetings at the World Intellectual Property Organisation will relate to one another. The first, an “intersessional intergovernmental meeting” (IIM) from 11 to 13 April was mandated to discuss a proposal (WO/GA/31/11) for a Development Agenda tabled at the WIPO annual General Assembly last fall. The second, on 14 and 15 April, is a meeting of the WIPO Permanent Committee on Cooperation for Development Related to Intellectual Property (PCIPD). WIPO officials declined to offer details on the subject matter of the meetings or their relationship to one another. A key issue in the two meetings, according to developing country officials and non-governmental observers, will be whether to create a Standing Committee on Intellectual Property and Development, possibly converting the PCIPD. According to one official, developed countries and the WIPO Secretariat favour this approach, which would have the effect of relegating development issues to a specific forum within WIPO, thereby allowing for development issues to be ignored other WIPO committees. Another primary issue arises from a U.S. proposal circulated in Geneva prior to the April meetings that stressed boosting technical assistance and partnerships as a way to address development concerns. This suggestion was received with scepticism by those who view it as minimizing larger development issues. Several developed country officials and the WIPO Secretariat would not comment on the question of a separate committee, but a communiqué from a 21-22 March meeting of the Working Group of Industrialised Nations on Intellectual Property and Development mentioned the need to go beyond capacity-building and “deepen our understanding of the relationship between IP and economic, social and cultural development,” a line similar to one in the U.S. proposal. But like the U.S. proposal, the industrialised nation communiqué focused most on capacity building. The meeting was hosted by the European Patent Office in Munich. The 53 delegates attending also discussed existing proposals on the disclosure of the origin of genetic resources and traditional knowledge in patent applications. There was consensus to discuss this further within WIPO. The U.S. proposal also states that, “The U.S. strongly supports exploring new ideas and approaches to strengthen and expand WIPO’s programs to better meet the needs of developing countries, particularly through the PCIPD.” But the partnership program would draw WIPO into a network of other agencies and the private sector, driven by “market-forces” principles. The move to create a separate committee would follow along the lines how biodiversity issues were handled at WIPO, which some argue have seen little progress (at least on bio-piracy concerns) since the creation of an Intergovernmental Committee on IP and Genetic Resources, Traditional Knowledge and Folklore. The committee’s creation also has allowed these issues to be sidelined in key debates such as on the Substantive Patent Law Treaty in other committees, the official said. Developing countries and co-sponsors of the development agenda proposal disagree with the establishment of a single body within WIPO to address development. A key aspect of the proposal is a call for systemic change throughout WIPO toward a greater sensitivity to developing country concerns. WIPO is caught in crossfire, as developed countries speaking on behalf of their influential intellectual property-producing industries oppose such a change. A test of the acceptance of development issues at WIPO will be the June meeting of the Standing Committee on the Law of Patents, the official said. That meeting will address a proposal by the United States and others move forward on patent harmonisation. The proposal received support at a February consultation with mostly like-minded governments held by WIPO Secretary-General in Morocco. A group of developing country sponsors of the Development Agenda proposal issued a statement criticizing the Casablanca consultation, in part because it went beyond the Secretary-General’s mandate from the General Assembly. The co-sponsors of the original proposal to establish a Development Agenda at WIPO were: Argentina, Bolivia, Brazil, Cuba, the Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela. At the meeting, developing countries will seek concrete proposals on implementing the agenda, an official said. Proponents of the Development Agenda do not appear to oppose the creation of committees that address aspects of development, such as technology transfer. But they may favour keeping the overall issue at the IIM level until the desired change is brought about within WIPO, so as to keep the issue at a high level, sources said. One Geneva-based non-governmental representative stressed that regardless of what committees are created or mandated to look at the Development Agenda, “a clear and fundamental demand is that development issues be integrated in all WIPO bodies, discussions and activities – from norm-setting to enforcement to technical assistance.” The WIPO meetings have not been without controversy. Non-governmental groups have complained about WIPO’s limit on participation to already accredited organisations. Over 800 people have signed a letter called the “WIPO Manifesto for Transparency, Participation, Balance and Access,” asking that public interest NGOs be allowed to participate in the Development Agenda meetings as ad hoc observers. The letter calls on WIPO to provide assistance in creating a global regime that facilitates open access to knowledge, according to release from the Electronic Frontier Foundation. _____ This work is licensed under a Creative Commons License. All of the news articles and features on Intellectual Property Watch are also subject to a Creative Commons License which makes them available for widescale, free, non-commercial reproduction and translation. William New, the author of this post, may be reached at wnew at ip-watch.org. To subscribe for automatic notifications of these stories, visit www.ip-watch.org, then click on Latest News and Email Alerts or RSS Feed. -- From prabhuram at gmail.com Sat Apr 2 14:24:04 2005 From: prabhuram at gmail.com (Ram) Date: Sat, 2 Apr 2005 10:54:04 +0200 Subject: [Commons-Law] On the Development Agenda (Jeebesh) (Sudhir) In-Reply-To: References: Message-ID: <68752c9f050402005422063da9@mail.gmail.com> Dear all, This is with reference to the earlier two postings by Jeebesh, and Sudhir. I am herewith sending you an article from the latest issue of Businessworld, which pertains to the WIPO and India´s role. This is perhaps the first time that any premier Indian business magazine has devoted its pages to an issue of such importance. Ram PATENTS The new battle ground India may lose its traditional allies as it shifts its stand on the development goals of a global patent regime. Latha Jishnu Call it forum shopping. When a strategy doesn't work in one place, move on to another - and to the next. That's how the patent battle is being waged as the industrialised nations doggedly seek tighter protection for their intellectual property (IP) in the developing world. Following the setback at the World Trade Organization (WTO), the frontline of this confrontation has now shifted to the World Intellectual Property Organization (WIPO) in a loop that has targeted individual nations and regional trade blocs. The momentum picked up after the WTO adopted the Doha Declaration on Trade Related Aspects of Intellectual Property Rights (TRIPs) in 2001, giving primacy to public health concerns in IP-related issues, and subsequently ratified it in August 2003. Since then, the developed world, notably the US and the European Union, have been pulling out all stops to impose what are known as TRIPs-plus conditions on the developing countries, either through pressures exerted on individual countries to amend their laws or through bilateral and regional free trade agreements. TRIPS-plus conditions provide stronger IP protection than what the WTO seeks from its members, and usually have far-reaching implications for public health and agriculture in poor countries. If the EU and the European Free Trade Association (EFTA) have been arm-twisting African and Caribbean nations into providing such protection, the US has been way ahead with its TRIPs-plus approach, which has locked a swathe of nations from Singapore to Morocco and Chile in a vice-like grip. The bigger target, however, remains WIPO, one of 16 specialised agencies of the UN that administers 23 international treaties dealing with different aspects of IP protection. The Geneva-based organisation counts 182 nations as its members, and it is here that a bitter contest is taking place between developed nations and the trilateral bloc of the US, the EU and Japan. India, strangely, is now finding itself smack in the line of fire, alienated from its traditional allies - and its known position on IP issues. The fireworks began after a select consultative meeting was called recently by WIPO director-general Kamal Idris to discuss the global patent harmonisation process. The meeting, held on 15-16 February in Casablanca, Morocco, was chaired by India's top scientist R.A. Mashelkar, director-general of the Council of Scientific & Industrial Research and secretary, department of science and technology. It is an issue that has blown up in India's face. Not only was it a meeting to which most developing nations had not been invited, but the manner in which the consultations were conducted has provoked a global storm. Over 800 organisations and eminent persons have signed a petition criticising the meeting and calling for a transparent process at WIPO. Barring Brazil, none of the Group of 14 nations led by Argentina, which are pushing a development agenda at WIPO in 2004, was invited for the meeting. And Brazil, which is a co-sponsor of this agenda, predictably opposed the resolution adopted at Casablanca. The select February meeting has set the road map for the WIPO general assembly to move forward on patent harmonisation. The meeting identified the six issues to be dealt with in an accelerated manner to move towards codification of an international IP law: prior art, grace period, novelty, inventive step, sufficiency of disclosure, and genetic resources. To the lay person, these might seem innocuous; to the IP community, this is volatile stuff. It is the core of the developed nations' TRIPS-plus agenda. Setting off a storm: Mashelkar's chairing of a WIPO meet has sparked protests Casablanca represents a significant victory for industrialised nations, led by the US, which have been pressing for speedier harmonisation of patent laws and procedures at WIPO. Harmonisation is the most controversial subject being debated currently in WIPO and has resulted in battle lines being drawn on traditional North-South lines, although there is discord enough among the developed countries, too. The trilateral group, despite their differences - the EU recently deferred a law on software patenting - has been threatening to walk out from WIPO unless the developing countries fall in line on harmonisation. The threat was that they would effectively take the Patent Cooperation Treaty (PCT) out of WIPO to a rival system. The PCT regulates the registration of global patents and is WIPO's main source of revenue. Not many expect this to happen, at least not in the foreseeable future. Some like Dilip Shah, secretary general of the Indian Pharmaceutical Alliance, believe it is a bluff that should be called because they "need us more than we need them". Shah, who has been spearheading a campaign to protect the generics industry, says WIPO provides a cost-effective, efficient system that is more useful for the rich countries. Casablanca has brought India back into the harsh glare of the global spotlight. Since December, when it passed its patent ordinance, the country has been the focus of health activists across the world. Protests have been staged outside its missions in Washington, London and Paris, while Delhi has been inundated by petitions from across the world, calling for adequate protection to its generic drugs industry, which provides more than half the anti-retroviral medicines used by AIDS patients in 27 countries. Left out: India stands to lose friends like Brazil's Lula da Silva and South Africa's Thabo Mbeki. They represent the other two sides of the trilateral IBSA trade bloc Even the World Health Organization had intervened. Director Jim Yong Kim, who heads the WHO's department of HIV/AIDS, had written to Indian health minister A. Ramadoss, urging that India's patent laws should make full use of the flexibilities available under TRIPs. And the conservative newspaper New York Times had made a pitch for an Indian patent law that took into consideration the health needs of poor patients. Some of the clamour had died down after a much-reworked Patents Bill was passed by Parliament in February, but the WIPO issue has once again stirred up matters. Mashelkar, who spoke to BW shortly after coming back from the WIPO meeting, says it "helped save the multilateral process". But for India, there is trouble in store. Officials at India's permanent mission to the UN say that they are finding it difficult to reconcile the resolution moved by the Casablanca meeting with India's longstanding commitment to a development agenda. The mission has sent a letter to key officials in the ministries of commerce and industry, external affairs, health and HRD, warning that India can expect to remain under the microscope on its patents policies. It says: "There is concern that Dr Mashelkar's chairing of the Casablanca meeting and playing a key role in shaping its outcome could be a signal that India is not just distancing itself from other developing countries on an important North-South issue, but more ominously that India might be considering joining "the other side'." Calling their bluff: Indian Pharma Alliance's Dilip Shah says WIPO must not be hijacked by rich nations The mission contends that the selective manner in which invitations to the Casablanca meeting were issued - "almost entirely to individuals/countries known to be supportive of upward harmonisation" - and the expected outcome has "become a subject of intense concern to officials working in the health sector, including WHO, UNAIDS, the Global Fund and civil society at large". Diplomatic observers underline a larger implication. For one, there is the question of the G20 alliance in the WTO. This group of developing nations, led by Brazil, India and Argentina, has been extremely successful in wresting concessions on a number issues, especially agriculture, from the rich bloc. Will this still hold after India's sharp deviation from the development agenda at WIPO? Two, there is the IBSA (India, Brazil, South Africa) initiative, a new trade axis aimed at harnessing the potential of the big boys in three continents. Here, too, India will have some explaining to do. Complexities abound because India is yet to join the Group of 14 at WIPO, though it had made its intention to do so clear at the October general assembly. Debabrata Saha, deputy permanent representative of India at the UN, had said then that all members of WIPO must "recognise that higher and higher levels of IP protection, inherent in any harmonisation exercise that takes no account of the circumstances of each country, is extremely detrimental". In short, India had questioned whether harmonisation benefits developing countries at all. As officials scramble to clarify Delhi's position, experts say the dangers of a TRIPs-plus harmonisation through the Substantive Patent Law Treaty (SPLT) at WIPO have not been studied carefully. Some of the SPLT proposals that have implications for flexibility in TRIPs include three critical consequences: Reducing the flexibility of countries to define what constitutes patentability, such as the requirement for a technical character in inventions; Introducing matters of equivalence in international patent rules; and, Prohibiting countries from imposing any more conditions on patent applicants other than those specifically provided for in the treaty. There are clear dangers in the draft SPLT. One such is the item dealing with industrial applicability or utility. One of the proposed ways to deal with this is to define industrially applicable inventions as those which "can be made or used for exploitation in any field of [commercial or economic] activity". Analysts warn that if this proposal goes through, it will mean that that anything used in commercial or economic activity except mere discoveries, abstract ideas, scientific and mathematical theories, laws of nature, and even purely aesthetic creations would be patentable. As patent lawyers see it, this would open the floodgates - to merely opportunistic business practices and numerous litigations - and eliminate the current flexibility under TRIPs which allows each country to define patentability. The entire exercise which the Indian government is now undertaking - of setting up an expert panel to define what is patentable - would become irrelevant. Says Shah: "Upward harmonisation without consolidation would be foolhardy. These laws have an impact on access to medicines and public health." As protests over WIPO's lack of transparency mount, Delhi will find that it has another battle apart from patents on its hands - that of credibility. -- Prabhu Ram, Max-Planck-Institut for Intellectual Property, Competition and Tax Law, MarstallPlatz 1, 80539 Munich GERMANY Tel: + 49 89 24246226 Mob: + 49 17629830521 Web: http://infoserve.blogspot.com From prabhuram at gmail.com Sat Apr 2 14:30:14 2005 From: prabhuram at gmail.com (Ram) Date: Sat, 2 Apr 2005 11:00:14 +0200 Subject: [Commons-Law] On the Development Agenda (Jeebesh) (Sudhir)-2 In-Reply-To: <68752c9f050402005422063da9@mail.gmail.com> References: <68752c9f050402005422063da9@mail.gmail.com> Message-ID: <68752c9f0504020100325cf471@mail.gmail.com> Dear all, While the earlier article was more basic, this one below gives a preview of what to expect at the upcoming Inter-sessional Intergovernmental Meeting (IIM) pertaining to the Development Agenda. This is from the latest 100th issue of the South Bulletin, published by South Centre, Geneva.- Ram WIPO AND THE DEVELOPMENT AGENDA IN SEARCH OF THE DEVELOPMENT DIMENSION IN INTELLECTUAL PROPERTY Thanks to the initiative to establish a Development Agenda at the World Intellectual Property Organization (WIPO) last year by a number of developing countries, an Inter-sessional Intergovernmental Meeting (IIM) is to be held in Geneva from 11-13 April, 2005. The meeting is expected to take a closer look at a number of proposals that have been made. Presented below is a preview of the upcoming meeting on the WIPO Development Agenda, prepared by Sisule Musungu of the South Centre. At the 2004 WIPO General Assembly, 14 developing countries, namely, Argentina, Bolivia, Brazil, Cuba, the Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela, presented a proposal for the 'Establishment of a Development Agenda for WIPO'. The proposal suggested various measures which WIPO Members could take in order to ensure that development is at the heart of all WIPO programmes and activities, and that WIPO is contributing to the fulfilment of the Millennium Development Goals (MDGs). Among others, the proposed measures include: the adoption of a high-level declaration on intellectual property and development; amending the WIPO Convention; the inclusion of provisions on technology transfer, competition etc. in treaties under negotiation; establishing technical assistance programmes based on particular principles and objectives; and establishing a working group on the development agenda. Apart from these specific measures, the proposal also sought to lay a solid basis for crystallising the meaning and content of the development dimension in intellectual property policies. The WIPO General Assembly welcomed the initiative and decided inter alia to convene inter-sessional intergovernmental meetings (IIM) to have a focused discussion on the proposal as well as any other proposals that may be presented by Member States. The IIM would prepare a report to be considered by the General Assembly at its next session by 30 July 2005. The General Assembly also instructed the WIPO Secretariat to organize with other relevant multilateral organizations, including UNCTAD, WHO, UNIDO and WTO, a joint seminar on intellectual property and development. The first IIM is scheduled to be held in Geneva from 11 to 13 April and the seminar on 2 and 3 May 2005. A Preview of the IIM Meeting During the debate on the proposal at the General Assembly, though there may have been nuances with respect to the details, there was very wide support for the proposal from a majority of developing countries. On the other hand, most of the industrialised countries, so-called Group B countries in WIPO, argued that WIPO was already incorporating development into its activities. The strongest opposition to the proposal came from the United States. Its delegation argued that the development agenda proposal "appeared to be premised on the misconception that strong intellectual property protection might be detrimental to global development goals and that WIPO had disregarded development concerns". The United States has now presented its own proposal for discussion at the IIM. The proposal essentially proposes the establishment of a partnership programme for technical assistance in WIPO. The United States criticism and its proposal as well as the overall approach of Group B, however, seem to be based either on a misreading of the proposal or on a well calculated plan to trivialise and side step the issues raised in the proposal. In particular, the misconceived idea that the call for a development focus in WIPO activities means a call for technical assistance is troubling. This approach is reminiscent of the standard approach in many other fora where demands by developing countries for development focused international action are usually met with a promise of technical assistance. The promises of technical assistance are based on the idea that such demands are usually misguided and so technical assistance would wise these countries up. Looking at the way things are shaping up, it appears that the first task for the co-sponsors of the development agenda proposal will be to make it clear that the proposal for the establishment of a development agenda in WIPO is not a call for more technical assistance. The proposal is a call for a fundamental shift in the orientation and functioning of WIPO to bring its action into line with its mandate as a U.N. agency. Consequently, while improvements in the design, delivery and evaluation of WIPO's technical assistance may have a role to play in ensuring that the implementation of intellectual property rules is development-sensitive, the proposal is of a cross-cutting nature and addresses many issues including the manner in which subjects for treaty negotiations are identified and how the actual negotiations are conducted. The second and most important task for the co-sponsors and other supporters of the development agenda will be to set clear benchmarks for determining whether the outcomes of the IIM and future WIPO activities meet the development test. What Outcome Will Meet the Development Test? To pass the test of development, the discussions at the IIM meetings will have to address a number of key questions relating to the mandate of WIPO and participation of public interest groups in WIPO processes, norm-setting activities and priorities, the design, delivery and evaluation of technical assistance and technology transfer issues. The Mandate, Current Programmes and Participation of Public Interest Groups in WIPO In the development agenda proposal, while noting that WIPO as a U.N agency was bound to undertake its programmes in line with the development objectives set by the U.N such as the MDGs, the co-sponsors raised the possibilities of amendment the 1967 WIPO Convention to ensure that the development dimension is an integral element of the organisation's work programme. In this regard, the IIM will have to address a number of questions including, among others: Whether WIPO by virtue of its 1974 Agreement with the U.N., recognising it as a U.N. agency with the responsibility for promoting creative intellectual activity and transfer of technology, has a clear development mandate; Whether there is an inherent conflict between the 1974 U.N. Agreement and the 1967 WIPO Convention, which narrowly focuses on the promotion of intellectual property? Whether particular practices and approaches in the past have impeded the effective implementation of WIPO's U.N mandate; How WIPO has played its role in fulfilling the MDGs, particularly in the context of the Millennium Project Report; Whether the current governance structure of WIPO, including the existence of an Industry Advisory Commission (IAC), is suited to ensuring the effective oversight by Member States over the work of the Secretariat and the implementation of its mandate; Whether there is an adequate system of objective evaluation of the impacts of WIPO administered treaties and programmes; and Whether there is adequate participation by public interest groups including civil society organisations and consumer groups in WIPO processes. New Initiatives for Norm-setting and Current Treaty Negotiations Currently, WIPO initiatives to implement or change current international intellectual property standards and to develop rules in new fields are not based on any objective evaluation of the benefits and costs especially for developing countries. A number of questions will need to be addressed by the IIM on how norm-setting activities in WIPO could be structured to meet the needs of developing countries. These could include the following: What are the principles that should guide the norm-setting activities within WIPO? How can the different levels of economic and technological development among WIPO Members be reflected in proposed and future WIPO treaties as well as in the already existing treaties? Should a development assessment be required before launching any initiative? If so, which criteria and indicators should be applied to determine negative/positive impacts of norm-setting? What other mechanisms could be established to ensure that norm-setting activities effectively take into account the interests of developing countries? Technical Assistance and Related Activities WIPO technical assistance programmes and activities have to be appropriate and effective in helping integrate intellectual property into the national development goals of developing countries. For this to happen, the design and delivery as well as evaluation of technical assistance need to be critically examined and reformed. This examination and reform should be guided by the following questions, among others: What principles and guidelines should underpin the design, delivery and evaluation of WIPO's technical assistance programmes and what mechanism are needed to implement them? What are the key concerns with WIPO's technical assistance including those identified by bodies such as the U.K Commission on Intellectual Property Rights and civil society organizations? What measures, if any, have been undertaken to address these key concerns? Transfer of Technology The Development Agenda proposal refers to the need to identify measures that could be undertaken within the existing intellectual property treaties to ensure an effective transfer of technology to developing countries. It also raises the question of how new treaties should address the question of transfer of technology. To determine how WIPO could facilitate transfer of technology, the IIM will have to address the following questions: What is the impact of intellectual property on transfer of technology? Why doesn't WIPO have any dedicated process or body to address the issue of technology transfer when this is a key element of its mandate as a U.N. agency? How do existing and proposed WIPO treaties address the question of transfer of technology? To what extend has WIPO technical assistance assisted developing countries implement articles 7, 8 and 40, of the TRIPS Agreement? -- Prabhu Ram, Max-Planck-Institut for Intellectual Property, Competition and Tax Law, MarstallPlatz 1, 80539 Munich GERMANY Tel: + 49 89 24246226 Mob: + 49 17629830521 Web: http://infoserve.blogspot.com From eye at ranadasgupta.com Sat Apr 2 16:49:01 2005 From: eye at ranadasgupta.com (Rana Dasgupta) Date: Sat, 02 Apr 2005 16:49:01 +0530 Subject: [Commons-Law] William Hogarth and the emergence of English copyright Message-ID: <424E7FA5.2040001@ranadasgupta.com> (The following notes based on Jenny Uglow's biography of Hogarth (Faber & Faber, 1997.) The artist William Hogarth (1697-1764), like a number of the men around him - such as actor David Garrick, and authors Samuel Johnson and Henry Fielding - was at the heart of London's eighteenth-century public life, and had intense opinions about it, which were expressed not only in his images but in his membership of charities and associations and in his legal lobbying. This is a sketch of Hogarth's ideas on society and the public, in particular with respect to copyright, which was key to them. Hogarth's family was educated but intensely poor. His father's various attempts to make money out of schooling and educational pamphlets failed, and he found himself imprisoned for many years for debt. He died broken and almost pathologically obsessed with his inability to publish his dictionary; the young Hogarth carried with him an enduring hatred of all the monopolists who were able to cheat or sideline small-time producers like his father. William secured a silver engraving apprenticeship through his family and began to engrave plates and tankards etc. He soon moved, however, into the engraving of book illustrations, shop advertisements, and social caricatures. He was supremely talented at this latter form, producing overflowing scenes of London life whose dense meaning is difficult to read for our generation used to visual meaning unfolding in time. In a startlingly ambitious expansion of his talents, he taught himself to paint and made his name with a series of six paintings, still famous today, The Harlot's Progress, which showed an innocent country woman arriving in London and descending into prostitution, prison and death. http://www.haleysteele.com/hogarth/plates/harlot.html The form was one of his own invention: the "Progress," a series of linked pictures that drew out a social stereotype (the harlot) into a tragic biography of naivety and need surrounded by indifference and evil interests. It was a form he would repeat with such series as The Rake's Progress - http://www.haleysteele.com/hogarth/plates/rake.html - and Marriage a la Mode - http://www.haleysteele.com/hogarth/plates/marriage.html In each of these cases, Hogarth painted a set of unique, original paintings from which he then engraved a plate that could be used to produce an unlimited number of prints. His revenue came mainly from the prints, that were sold to the public in large numbers. He was unshamedly commercial in his approach to the sale of these prints, advertising them in the London papers and devising all kinds of schemes to maximise his returns. An essential part of securing these returns was the introduction of a copyright bill which Hogarth devised in association with other young artists in 1735 (when he was 37 years old). At the end of these notes comes Jenny Uglow's narrative of the formulation and introduction of this bill. This bill needs to be understood in the context of a number of significant social and intellectual trends of the time (which are perhaps all the more significant when we reflect that Hogarth died only just before the constitutional formulations of "America"). Hogarth was ambitious and money-minded, and was sickened with jealousy for those who made more money than he; but this ambition could never eclipse his suspicion and contempt for the injustices and absurdities of establishd interests (and his satire of the classical, "Palladian" forms that were their aesthetic), nor take away from him his genuine identification with the poor. He was an enthusiastic participant in the london tavern and coffee house scene, and instigator of a rowdy dining society (the Sublime Society of Beefsteaks); such institutions were the "Chat Rooms" and "Blogs" of the day - as Addison's new bourgeois journal The Spectator commented in 1711, "Sometimes I am seen thrusting my Head into a Round of Politicians at Will's, and listening with great Attention to the Narratives that are made in those little Circular Audiences. Sometimes I smoak a pipe at Child's; and whilst I seem attentive to nothing but the Post-Man, overhear the Conversation of every Table in the Room." Hogarth shared in a faith widespread in his entrepreneurial, middle-class world in the power of trade and conversation. Almost neurotically patriotic, his early work, in particular, is keen to idealise the social variety and exuberance that he saw as the best signs of British liberty; and he fought hard (and unsuccessfully) against the establishment of the Royal Academy of Art which would represent a state take-over of the existing public academies run by the artists themselves. Though he eventually secured a court position and painted official pictures of royal events, Hogarth remained always confident - and sometimes brash - in the expression of his middle-class self, and his most striking portrait was of a self-made sailor, entrepreneur and philanthropist who is depicted endearingly uncomfortable in the aristocratic settings of the portrait: http://www.abcgallery.com/H/hogarth/hogarth47.html The other aspect of Hogarth's faith in unfettered British trade and conversation concerned improvement and the poor. Not only did his works bring public attention to the plight of the poor in London, but he was involved in the setting up of a hospital for foundlings, where mothers could take babies they could no longer support. As Hogarth became older, it is this aspect of his personality that comes to dominate, and his former love of writhing disorder gives way to a greater horror of indiscipline. This can be seen in the facile moralising of his "Industry and Idleness" - http://www.haleysteele.com/hogarth/plates/iandi.html - and of course in two others of his most famous works, Beer Street and Gin Lane - http://www.haleysteele.com/hogarth/plates/beer_and_gin.html - where the standard satire of London life seen in Beer Street (wealthy young men drunken and pawing prostitutes) is made to seem positively healthy and desirable in the light of the scourge of gin. These were years of turmoil in London, with large-scale immigration, mass poverty, high rates of violent crime, and, like many others of his day, Hogarth wondered how this underclass could become domesticated and made to serve the righteous interests of the nation. The founding of the Foundling Hospital, after all, was not only a charitable gesture; the argument made to its rich patrons was that foundlings were a waste of British stock that could be used on the ships and in the fields and thus to boost the strength of a nation whose population was in disastrous decline compared to its European rivals. This, then, is the background to a certain successful, self-confident man in the middle of eighteenth-century London. The legal basis to this success and confidence was the Copyright Act of 1735. Jenny Uglow's account can be found on pages 268-271, and appears below. ******* Hogarth's mission to defend the rights and property of British artists carried over into his work as an engraver. The prints of A Rake's Progress had not been issued to subscribers with Southwark Fair that January for two reasons. First, Hogarth had been working on his pictures, adding new characters thrown up by the news. Second, he had plans to beat the printsellers and the pirates and did not want to release the prints too soon. He had decided to petition Parliament for an Act that would give designers and engravers the same statutory copyright that authors had won in 1709. Working out the details with his friends, Hogarth proposed a Bill that would give them an exclusive right to their work for fourteen years from the time of publication. This would not only mean that they retained the financial rewards now creamed off by the printsellers, but it would also establish a different meaning of 'ownership' of works of art: at last, the engraver could legally 'own' the property produced by his labour. Furthermore, it enhanced the dignity of the work itself, giving the multiple print a similar status to that of the single painting. And it meant that fine prints could retain their integrity and no longer be debased, 'cheapened' by poor copies. Hogarth put forward his argument in an open letter to a Member of Parliament. He could never write a dry document, and the little pamphlet storms off the page. He blasts at the printsellers, who have fattened on the labour of the poor engravers, working day and night at 'miserable prices'. The tyrants he fights are not rich patrons, or rich artists, but the 'overgrown shopkeepers' who band together in a vicious monopoly: if a printmaker dares ask a reasonable price, the printseller immediately has copies made and sold dirt cheap, to squash his rebellion. Hogarth was not thinking merely of himself but of the problems facing all engravers: the poorer workers who have no shop or studio to show their prints and have to be reliant on the printsellers; and those who are successful but are forced to use their time to act as shopkeepers (if they don't want to be at the mercy of the publishers), rather than work on their art. Many of these complaints were echoed by Vertue in his later note lamenting that engraving was the least profitable of all arts. This was partly, he thought, because of the mass production, 'the necessity of such works being inted on paper. a sheet being of small value - subject to be multiplyed. and consequently more in number so each of less value'. Prints were also often 'marr'd or ill printed' by ignorant workmen. But the worst feature was the way 'the print sellers squeeze and screw. trick and abuse the reputations of such engravers - to raise their own fortune by devouring that of the Sculpture-Engravers'. Hogarth's open letter, The Case of Designers, Engravers, Etchers etc., made a case for the importance of copyright as a general good, not just an individual benefit. Good-quality prints would raise the artists' reputations, and higher standards of reproduction, he argued, would improve the status of British art in general. Secure in the knowledge that they would reap and keep the rewards of their work, more people would enter the engraving trade; the public would have a wider choice and - in the end - even the printseller would profit. At the end of 1734 the engravers' petition was drawn up. William Huggins, as a lawyer, tried (not wholly successfully) to ensure that the legal technicalities were correct and in the following February it was presented to Parliament. It bears the signatures of engravers whom Hogarth had known, worked with and drunk with since the 1720S: George LaIllbert, anxious to protect the new engravings of his East India scenes; Gerard Vandergucht, who had engraved many of Hogarth's book designs; John Pine, whose work had brought a new vigour into the British trade; the architect and engraver Isaac Ware; George Vertue, and Joseph Goupy, now drawing teacher to Frederick, Prince of Wales. In 1735, under a combination of commercial pressure and Hogarth's urging, old rivals were acting as one. Other engravers came forward to give their evidence to the Commons Committee, and the Bill went smoothly through the Commons and Lords. Finally a date was set for the Act to receive the Royal Assent: 25 June 1735. The assent was given, with nice irony, in a flourish of legal French. At the end of April, as soon as the Bill had the essential approval of the Lords, Hogarth rushed his advertisements for A Rake's Prog;ress into the press. On 3, 5 and 7 May, he announced in the Daily Advertiser that the prints would be delayed until 25June 'in order to secure his Property' by the new Act, which would prevent prints 'being copied without Consent of the proprietor, and therby preventing a scandalous and unjust Custom (hitherto practised with Impunity) of making and vending base Copies of original Prints, to the manifest Injury of the Author and the great Discouragement of the Arts of Painting and Engraving'. He could not win, of course. Such a blazon of defiance roused the printsellers into action. Quickly, they sent scouts round to Hogarth's studio to spy out the paintings of the Rake. They then rushed back to put as much as they remembered on paper. Working from their sketches and muddled descriptions, hired engravers created a sub-Rake before Hogarth's true one appeared. Major printsellers (Henry Overton, the Bowles brothers and John King) placed their own notices in the Daily Advertiser - for 'The Adventures of Ramble Gripe, Esq, Son and Heir of Sir Positive Gripe'. As well as making Hogarth quickly change his hero's name from Gripe to Rakewell, the printsellers' actions made him lash out. On the day of their advertisement he appealed vehemently for support against men 'who are capable of a Practice so repugnant to Honesty and destructive of Property'. All prints that appeared before 24June, he added, would be 'an Imposition on the Publick'. In mid-June, he announced that to protect that public he would have authorized copies made, to be sold at 2s 6d a set through Thomas Bakewell in Fleet Street. Eventually, the subscribers' prints were issued on 25June, followed by new impressions, sold at 2 guineas a set by Hogarth and Bakewell, and finally by Bakewell's cheap, smaller copies in mid-August. So 'Hogarth's Act' did not solve all his problems, And when it was finally tested in court in 1753, it proved to have certain weaknesses due to technical problems with the drafting with regard to assignees: it was typical ofHogartb, who liked to do everything himself, not to think of the problems that might arise if someone else was doing the engraving for you.28 Nor did his Act protect those who copied old-master drawings or engravings. Nevertheless, he could write defiantly in his autobiographical notes that it had not only scotched piracies but improved British engraving, 'there being more business of that kind done in this Town than in Paris or any where else and as well. Such inovations in these arts gave great offence to dealers both in pictures and Prints.' The printsellers' habit of living off the ingenuity of the industrious had suffered, and 'if the detecting the Rogurys of these opressers of the rising artists and imposers on the public is a crime I confess myself most guilty'. The significance of the Act had, perhaps, been greater than even he realized. The idea of the original, unique canvas as containing all worth was diluted; mass production was not seen as a slippage, a stigma, but as another legitimate route for an artist to take. Hogarth was no maverick, thinking up this campaign in an isolated moment of genius. Similar arguments about intellectual and artistic property were going on in several fields in the 1730s. Musicians were worried about pirated scores and plagiarized performances; writers were seeking to extend the copyright through the 'Society for the Encouragement of Learning'; playwrights and theatre managers were arguing against censorship. The theatre, too, faced problems of internal politics and external pressures, of a slightly different nature. While Hogarth was galvanizing the engravers into concerted action, Fielding was also forging a new platform, forming his own company, 'The Great Mogul's Company of English Comedians' (adding ironically, 'Newly Imported'). In February 1735, with James Ralph as partner and a group of young actors, he took over the Litde Theatre in the Haymarket and launched a volley of irregular plays, beginning with Pasquin, a staggeringly successful political farce. Fielding, too, was challenging the Establishment; and the playwrights also laid claim to free expression and the ownership of their talent. When Walpole eventually introduced a Bill to license theatrical performances, Lord Chesterfield declared that the Bill 'is not only an encroachment on liberty, but is likewise an encroachment on property. Wit, my lords, is a sort of property: the property of those who have it, and too often the only property they have to depend on. It is indeed a precarious dependence.' From skjha at iitb.ac.in Sat Apr 2 19:32:31 2005 From: skjha at iitb.ac.in (Shishir K Jha) Date: Sat, 2 Apr 2005 19:32:31 +0530 (IST) Subject: [Commons-Law] Questions on the Development Agenda In-Reply-To: <20050402085944.2195828D8C2@mail.sarai.net> References: <20050402085944.2195828D8C2@mail.sarai.net> Message-ID: <1205.10.127.133.110.1112450551.squirrel@gpo.iitb.ac.in> Must thank Prabhu Ram for the posting of two articles on the Development Agenda. It is just very amazing why India is not openly supportive of the Development Agena. I remember reading about India's role at the time of Casablance meet and was very puzzled. In an earlier WIPO meet at Geneva when the Development Issue was brought up, it seems that though India was not openly supportive of the "agenda", it still was rather sympathetic. Something has radically changed between that WIPO round at Geneva and Casblanca. Dr. Mashelkar's role is particularly intriguing. On the one hand his joint authorship of the London based CIPR [along with Prof. Carlos Correa and others] suggests that he cannot be averse to issues of development while on the other hand his viewpoints expressed at a few public forums, that I have attended, suggests a reluctance or at best great ambivalence in validating the viewpoints expressed in the CIPR. [See CIPR at http://www.iprcommission.org/graphic/documents/final_report.htm] Questions: Why was Dr. Mashelkar made the chair of the Casablanca session? Why is India playing such a questionable role at WIPO? Is it the result of a well thought out position by the Ministeries and policy makers or is it largely the maneuvering of few influential individuals? This is all quite dis-heartening. Too much is riding on the future possibilities of WIPO for India and the world for us to not take a more pro-active and supportive role in the development agenda. I hope some others could illuminate the dark corners of Indian policy making. Shishir K. Jha > A group of developing country sponsors of the Development Agenda > proposal issued a statement criticizing the Casablanca consultation, in > part because it went beyond the Secretary-General’s mandate from the > General Assembly. The co-sponsors of the original proposal to establish > a Development Agenda at WIPO were: Argentina, Bolivia, Brazil, Cuba, the > Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, > South Africa, Tanzania and Venezuela. At the meeting, developing > countries will seek concrete proposals on implementing the agenda, an > official said. From shuddha at sarai.net Sun Apr 3 04:05:36 2005 From: shuddha at sarai.net (Shuddhabrata Sengupta) Date: Sun, 03 Apr 2005 04:05:36 +0530 Subject: [Commons-Law] Judges and iPods : MGM vs. Grokster Message-ID: <424F1E38.30106@sarai.net> Dear all, (apologies for cross posting to members of the Reader List and Commons Law) I have been spending some quality time recently enhancing my tastes in music, augmenting my fledgeling itunes music collection, and getting myself an education in the wilder shores of hip hop, apart from collecting a few rare Glenn Gould recordings, thanks to the generosity of digital technology, a community of p2p users and the internet. Now, as some of you must be aware, this is the kind of activity that grandmothers and teenagers have faced fines, and prison sentences for. Naturally, this causes me some anxiety, as I cannot afford a fine, and have no intention of doing time. The fate of millions of people like me, will be decided in the days to come in the United States (and hence will set precedents elsewhere) in the MGM vs. Grokster case that is now being heard in the United States supreme court. I append below, a report on the ongoing legal battel, which appeared in the New York Daily news and is written by Errol Louis. What I found particularly striking in this report was the image that it gives us of a US Supreme Court bench, with an average age of 70 between them, arch conservatives as well as committed liberals, seeming to come together (which happens very rarely) singing praises of the iPod, even as the lawyers representing the music and movie companies that claim to speak for and to young audiences, argued against technological innovation. Enjoy, and now I must return to my musical self education project Shuddha ----------------------------------------------------------------------------- Music moguls on wrong side of copyright fight Errol Louis http://www.nydailynews.com/news/ideas_opinions/story/295250p-252770c.html The Supreme Court bars reporters from bringing technology into the main chamber where arguments get heard. No cell phones, laptops, tape recorders or cameras of any kind; pen and pad are the only tools allowed. A similar low-tech spirit governs the court's nonpublic work areas, including its nearly computer-free law library. The building only got Internet access two years ago. But during a landmark technology case argued before the court this week, MGM vs. Grokster, the nine justices, average age 70, almost sounded like teenage gadget freaks, firmly wedded to the high-tech wonders of the day. Justices Anthony Kennedy, David Souter and Stephen Breyer all sang the praises of the iPod. To make the irony complete, lawyers representing the youth-centered movie and music industries came off like tech-averse stiffs, begging for legal weapons to battle a tidal wave of digital innovation that's turning the business of culture upside down. Grokster, Morpheus and a handful of other companies distribute peer-to-peer software that allows computer users to swap digital files of documents, images, music and movies. Music files - perfect digital copies taken from original CDs - get downloaded 2.6 billion times a month, and half a million movies are downloaded every day. The moguls who run America's movie studios and music labels failed to understand the digital revolution would transform their industries - and were equally blind to market resentment over constantly rising prices charged for mediocre music and movie fare. Studios with the nerve to charge $10 a head for "Booty Call" or "Gigli" were practically begging for audience retaliation. By downloading movies for free, the public is telling Hollywood what such piffle is really worth. Music labels that once invested time and care to cultivate songwriters and musicians have been swallowed by profit-obsessed conglomerates that now rely on one-hit wonders by overhyped, underdeveloped performers to meet quarterly Wall Street targets. Rather than waste money on uninspired CDs, many listeners pick the hits they like via Grokster and ignore the rest. In the past, the entertainment industry bitterly complained about - but ultimately survived - the player piano, the phonograph and the VCR, although many users of these gadgets routinely violate copyrights. The justices, who have lived through many of these transformations, hammered the entertainment business from the bench. Arch-conservative Justice Antonin Scalia complained that making Grokster liable for free downloading might cause digital entrepreneurs to be sued the day after going into business. Justice Ruth Bader Ginsburg, a liberal who normally disagrees with Scalia, wondered how anyone could prove Grokster caused its users to make illegal downloads. The suits in the entertainment business should brace for bad news when the decision comes down. They may actually have to use the one weapon needed to compete with Grokster: creativity. Originally published on April 1, 2005 From shuddha at sarai.net Sun Apr 3 04:19:01 2005 From: shuddha at sarai.net (Shuddhabrata Sengupta) Date: Sun, 03 Apr 2005 04:19:01 +0530 Subject: [Commons-Law] Grokster vs MGM : Musicians for P2P Message-ID: <424F215D.6030000@sarai.net> Dear All, (apologies again, for cross posting to Reader List and Commons Law) A follow up on the previous post on the Grokster case More on the MGM vs. Grokster, this time from Chris Anderson, editor in chief of WIred Magazine, in piece that appeared in the Los Angeles Times, in which he argues that many musicians are actually in favour of P2P arrangments. cheers Shuddha --------------------------------------------- War on piracy victimizes innocent no-name artists http://www.newsday.com/news/opinion/ny-opand014198110apr01,0,5368122.story?coll=ny-viewpoints-headlines BY CHRIS ANDERSON Chris Anderson is editor in chief of Wired. This is from the Los Angeles Times. April 1, 2005 The Supreme Court received an avalanche of friend-of-the-court filings this week for its hearing of the Grokster case, pitting a peer-to-peer file-trading technology against MGM. Yet, the outpouring of concern in the case only hints at the true number of interested parties. Two decades ago, when the famous Betamax case set a precedent that protected the VCR, it was consumers versus the studios and record labels. But now there's an equally important third party: the creative amateurs - people like you and me who not only consume but also produce content. And they're on the side of Grokster and the extraordinary power of the new distribution networks. As anyone who's played with the software now shipped with any new PC or Mac knows, the same tools that allow you easily to copy and share music and video also allow you to make your own. As a result, we're seeing the rise of a peer-production generation, such as teenagers using Apple's GarageBand to create or remix their own music, and snowboarders distributing highlight videos of their tricks to, yes, bloggers like me. Once upon a time, the ability to manufacture and distribute media and entertainment was solely the domain of professionals. Only pros could harness presses, airwaves, trucks, warehouses; only pros could command shelf space in the media and entertainment markets. Videotape and audiotape were the first cracks in this wall, giving consumers the power to do a weak form of manufacturing and distribution. But digital technology collapsed the wall. Using no more than my laptop and any one of a hundred cheap or free online services, I can be a recording studio, record label, music store and marketing machine. The Amazons, eBays and iTunes of the world have broken through the distribution bottlenecks. Increasingly, their endless aisles of shelf space hold not just the manufactured hits of traditional media and entertainment powers, but also the remarkably diverse output of countless niche producers. Each may not sell a lot, but together they represent a cultural force that can rival the mass market. And they are not just in it for the immediate sales. Britney Spears may consider file-trading a threat to her royalty stream, but other musicians would be delighted to become a peer-to-peer hit. Getting heard is the challenge for most bands. Once they have fans, there are lots of ways to make a living off them, from touring to T-shirts to CD sales. Even legends such as Talking Heads co-founder David Byrne are on their side. As he told National Public Radio, "Most artists see nothing from record sales - it's not an evil conspiracy, it's just the way the accounting works. So, as far as the artist goes, who cares?" What's at stake is the realm of ideas, sliced and diced a million ways. The peer-to-peer music sites are the closest current approximation to the celestial jukebox we all want. Kazaa, for instance, has 25 million unique tracks, dwarfing iTunes' measly 1 million. BitTorrent has more videos than Blockbuster. Many of them are pirated, to be sure, but a significant portion - videogame highlights, say - were never intended to be moneymaking. The problem is that we don't know how to stop the piracy without chilling the creativity. The main flaw in the case against Grokster is that the action attempts to criminalize a technology rather than a specific use. It also fails to distinguish between commercial content and noncommercial content. Restricting these powerful new distribution tools to fight piracy would hobble the new emerging creative class, too. The potential collateral damage to legitimate users is much greater than in the Betamax case. The Supreme Court should recognize that there is a silent majority in this case, made up not of pirates or the pop stars but the millions of individual talents who risk getting caught in the crossfire. -- Shuddhabrata Sengupta (Raqs Media Collective) The Sarai Programme Centre for the Study of Developing Societies (CSDS) 29 Rajpur Road, Delhi 110054, India Phone : + 91 11 23960040 Fax : + 91 11 23943450 E Mail : shuddha at sarai.net http://www.sarai.net http://www.raqsmediacollective.net From jeebesh at sarai.net Sun Apr 3 21:40:22 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Sun, 03 Apr 2005 21:40:22 +0530 Subject: [Commons-Law] Grokster / MGM case : interesting blog Message-ID: <4250156E.9050308@sarai.net> *http://blogs.law.harvard.edu/tka/2005/03/29#a53 A Few Notes from the /Grokster/ Argument * Along with what seemed like about two-thirds all the lawyers in Washington, I attended today’s Supreme Court argument in /MGM v. Grokster /, the case on the legality of decentralized peer-to-peer file sharing. It was the most crowded argument I’ve ever attended—I arrived before 6:30 a.m. and still ended up in the overflow seating, listening to the audio in the attorney lounge, which was standing room only. Mostly industry and government lawyers in attendance, it seemed to me, which is surely no surprise given the dollar amounts on the line. I don’t really like the attorney lounge because it’s sometimes hard to hear the Justices (they don’t all speak directly into their microphones) and because it’s not always clear who is speaking (Kennedy and Souter, in particular, sound basically the same to my ears). Just based on the audio feed, it sure sounded like the Chief had no business being out of a hospital. I would say the argument went a little better for Grokster than I would have expected it to. Not to the point where I’d actually predict victory for them, but to my mind at least, the questions Grokster got were not as difficult as those MGM got. The big issue that the Justices were wrestling with, it seemed to me, is what the standard ought to be for deciding whether services like Grokster can be secondarily liable for their users’ copyright infringement. The Justices did not sound especially satisfied with either MGM’s or the government’s answers to this question. MGM’s view was and is a little odd; their argument to the Court was that the legality of a technology should turn upon the type of /business model/ the developer of that technology adopts to distribute it. On this view, Sony is off the hook because Sony is not a company that is primarily in the business of copyright infringement. But Grokster should be held accountable because they intentionally founded a business based expressly on encouraging infringement of copyright. It does not matter, in MGM’s view, whether the infringing use of Grokster’s system constitutes 90% or 10% of the total: because its whole business plan is geared around using the promise of infringing content to lure customers, it should be liable. At least some of the Justices, Scalia in particular, seemed troubled by how an inventor would know, at the time of inventing, how its invention might be marketed in the future. How, some of the Justices asked MGM, could the inventors of the iPod (or the VCR, or the photocopier, or even the printing press) know whether they could go ahead with developing their invention? It surely would not be difficult for them to imagine that somebody might hit upon the idea of marketing their device as a tool for infringement. MGM’s answer to this was pretty unsatisfying. They said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one’s own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM’s side of the case who don’t think that example is one bit legal. But they’ve now conceded the contrary in open court, so if they actually win this case they’ll be barred from challenging “ripping” in the future under the doctrine of judicial estoppel. In any event, though, MGM’s iPod example did exactly what their proposed standard expressly /doesn’t/ do: it evaluated the legality of the invention based on the knowledge available to the inventor at the time, not from a /post hoc/ perspective that asks how the invention is subsequently marketed or what business models later grow up around it. Justice Scalia’s questions kept the focus on what an inventor would know at the time of making an invention: how would they know which uses of their product would later come to predominate; and should an inventor maybe have some fixed period of time (say, ten years) to develop noninfringing uses of its product before its legality is tested. MGM’s answer was that an inventor could never be secondarily liable because they could not be found to have acted with the requisite knowledge that they were facilitating infringement, but Grokster can be liable because its knowledge of that fact forms the very basis for its business plan. Justice Ginsburg asked whether an inducement theory based on whether a defendant built a business around encouraging infringement of copyright could ever be amenable to resolution on summary judgment, and MGM seemed to say that a trial would be required in every case. This is an extraordinarily low threshold they are asking the Court to establish for getting to a jury, and this is still a Court that generally likes summary judgment , so I wonder whether MGM’s proposed standard will get much traction. If the Solicitor General’s proposed standard was actually different from MGM’s, I’m afraid the subtlety was lost on me; their argument to the Court parroted MGM’s in most pertinent respects. The SG argued that a defendant should be held liable if their business model is not substantially unrelated to copyright infringement. Minor noninfringing uses (such as authorized downloads) should not immunize a defendant from liability, and in suggesting the contrary, the courts below misread the /Sony/ decision. The Court (Justice Kennedy, I think) questioned the government about whether there could ever be a safe harbor for defendants (maybe trying to see whether the SG shared MGM’s view that a plaintiff should get to trial in every case, or whether in some cases nonliability was so clear as to be decided summarily). The SG’s answer was that if a minority of the uses were infringing (that is, 50% minus one), the defendant should be off the hook, but anything beyond that and the court would have to look closely at their business model. The SG, in other words, called for a safe harbor that no extant, or reasonably foreseeable, service would ever be able to avail itself of. The SG also rejected the suggestions (by Justices Scalia and, I think, Souter) that perhaps infringing-versus-noninfringing business models shouldn’t be evaluated at the moment the company launches its product, but maybe after a market has had a certain opportunity to mature. The questioning of Grokster’s lawyer was very odd. The Court spent what I thought was an inordinate amount of time trying to nail down exactly what issues had been certified for interlocutory review and what issues were still “live” in the trial court. The dividing line seemed to fall between the question whether Grokster’s software design was lawful going forward, and whether Grokster could nevertheless face liability for its past efforts to market that software as a vehicle for infringement. The discussion on this point was not especially illuminating and consumed an awful lot of Grokster’s clock time. As expected, Grokster argued that the /Sony/ rule was necessary to protect innovation, and noted the large industries that had grown up expressly relying on the “capable of substantial noninfringing uses” test. Justice Ginsburg made a couple of comments about how there is more to the /Sony/ opinion than just the “capable of substantial noninfringing uses” phrase, but Grokster seemed to have the better of the argument that, say what you will about that phrase, it is in fact the standard that /Sony/ establishes, for better or worse. Justice Breyer wondered whether /Sony /wouldn’t work just as well if the Court struck out the words “capable of” and just focused on the actual uses, but Grokster answered that basically all of the alternative standards that had been proposed in the case were worse for innovation than the as-is /Sony/ test. There was a little sparring with Justices Souter and Ginsburg about whether the Court should be making the decisions in this area rather than Congress. I don’t think anybody expects the Court (especially /this/ Court) to punt to Congress, however, on this or any other issue that is colorably subject to judicial resolution. Some of the Justices seemed pretty troubled by the idea that Grokster had engineered its system for “willful blindness” to the infringing conduct of its users. Grokster’s lawyer conceded, as he had to, that one of the reasons Grokster designed its software as it did was to avoid the Ninth Circuit’s decision in the original /Napster/ case (which held Napster liable because its centralized file database gave it actual knowledge of what its users were doing). Grokster argued that designing around /Napster/ wasn’t its /sole/ purpose, but it remains to be seen whether the Justices think this is persuasive. I think they made a little, but not a lot, of headway on the “willful blindness” issue. MGM’s rebuttal opened with a real howler, and I am a little surprised that none of the Justices interrupted their lawyer to challenge it, but he was speaking pretty quickly and forcefully, so I guess they were inclined to let him sum up. Addressing the relief MGM was seeking, their lawyer said: Grokster is a machine built upon inducing infringement and we are entitled to an injunction shutting it down. The obvious rejoinder, based on the lower courts’ express findings in the case, is that an injunction /can’t/ shut down Grokster, the network, because it exists completely apart from Grokster, the company. If this was an attempt at some sleight of hand with the technologically unsophisticated judges, I don’t see it going anywhere, because the questioning of both sides seemed to reflect that the Justices have a hearteningly clear grasp of what the software does and doesn’t do. MGM also argued that the Ninth Circuit’s decision was itself chilling technological innovation, although they defined “innovation” as innovation /authorized by copyright holders/. MGM closed with its pity-the-starving-artists line, complaining about the lost revenues from hypothesized sales it says would have occurred absent file-sharing. On balance, not quite as bad a day for Grokster as I think a lot of people were expecting. Not a sure (or even a probable) victory for them by any means, but the Court did seem quite attuned to the effects on innovation of whatever liability rule it ultimately adopts. None of the Justices was talking as if the case could be disposed of on /Sony /alone, but there will be at least a few votes against abandoning that standard altogether. Whether the Court can craft a marginal tweak of /Sony/ that does as little harm as possible is a question nobody can answer now, but we will know in a couple of months. From jeebesh at sarai.net Sun Apr 3 23:47:10 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Sun, 03 Apr 2005 23:47:10 +0530 Subject: [Commons-Law] The Network Effects of Creative Commoning Message-ID: <42503326.40901@sarai.net> http://lawgeek.blogspot.com/2003_12_14_lawgeek_archive.html#107152958832327881 *The Network Effects of Creative Commoning: Why Silver Will Eventually Be More Valuable Than Gold* So I went to the Anniversary Party for Creative Commons last night. It was a very cool event, with lots of luminaries from the tech/cyberlaw world in attendance. CC debuted its new flash animation, chronicling its achievements over the last year and previewing what's forthcoming. It's a good flick and provides some real inspiration for changing the current copyright defaults from fear-of-infringing to stuck-on-sharing. Particularly inspiring was their new effort to create a "sampling license" that allows musicians to release music with a default license that says you can sample the song without having to ask permission, even for commercial purposes, as long as you agree to only use some but not all of the song. It's an ingenious way to create a huge library of songs that are truly Ready-To-Sample without any FUD -- a true lawyer-free zone. The real challenge, of course, will be to have artists agree to release their works under such a license. Many people have scoffed at CC licenses, arguing that successful bands and songwriters will never give up their full rights in a blanket form because of profit loss. Yet in the arena of sampling, it's not always necessary to choose the most successful artists. Often all you need is a good beat or three note sequence to fill in behind whatever you're working on. Thus, unlike many other forms of creativity, the identity of the underlying work isn't always as important as its availability or utility. Enter the brilliance of the CC sampling license. Say you're an up-and-coming artist looking for a backbeat track to sample for your new song. You see two options: (1) a massive library of historically copyrighted works (*All Rights Reserved*) and (2) a much smaller but growing library of CC licensed works (*Some Rights Reserved But Always Ok To Sample*). To access the first option, you have to hire a lawyer ($200/hour minimum), research the clearance rights, negotiate with the copyright owner for a license, sign the agreement, pay the license, and then (assuming you remember what the hell you wanted to do with the sample in the first place), lay down the track. Of course, you could ignore all of this and simply take the track and hope you don't get sued. But as Biz Markie found out, that's not a very safe way to make music or do business. To access the second option, on the other hand, you simply download the track and go -- rip, mix, burn. No lawyers to pay, no license to negotiate, no time wasted. Free music and instant gratification, the perfect combo. Soft clay for the creative hands. So what does this mean for the future world of sampling? Option 1 is like a pot of gold with scorpions in it. Option 2 is like a pot of silver. Each individual piece of Pot 1 is better but also more risky and resource-intensive to acquire. You have to be careful and cautious while you negotiate the gold out of the pot without disturbing the nasties that guard it. Each individual piece of Pot 2 is less valuable, but acquisition and use are fast, efficient, and carefree. Which would you choose? Many of us will still continue to choose gold, despite the risks, if we have the money and the need. But others will choose silver, especially if they are risk-averse or can't afford to pay or wait for licensing rights to clear. As more and more people choose silver over gold, the value of silver increases. This increases the incentives for artists to supply the silver, knowing that an ever-increasing pool of artists will be sampling from their works. Things becomes even more interesting if one imports an analysis of network effects into the system. The theory of Network Effects says that certain systems will increase in value proportional to the number of people who use the system. For example, the telephone system is not very good if only one or two people have a phone. But when 100 million people have phones, it's extremely valuable. The Internet, email, and other networks function much the same way. Being able to email one person isn't worth much; being able to email all your friends and colleagues is worth a lot. Sampling, by all accounts, should also work on these principles. Yet, under the current sampling system, just because one person clears rights to a song for sampling doesn't mean anyone else can. Each negotiation is generally separate, thereby requiring transaction costs for time and attorneys, etc, each time someone wants to use the track. Under the CC licensing system, however, the more songs you have in the library, the more valuable the library becomes. This is because you know that you can use all the songs you like in any way you like as often as you like. Eventually, with enough songs, musicians will come to value the CC sampling library /more/ because as a whole it represents more value than any particular individual song might represent under the traditional copyright licensing scheme. Add advanced metadata fields and search capabilities and these network effects increase exponentially. Eventually, silver becomes more valuable than gold. From monica at sarai.net Mon Apr 4 00:36:13 2005 From: monica at sarai.net (Monica Narula) Date: Mon, 4 Apr 2005 00:36:13 +0530 Subject: [Commons-Law] Down and Out in the Magic Kingdom Message-ID: For those who know of Cory Doctorow (writes for Wired, and his blog/online space BoingBoing is a pleasure trove of tech and life), his first novel Down and Out in the Magic Kingdom has been released under cc. Selling very well, its also available for free download (in the most amazing variety of file formats that i have ever seen listed together!) at http://www.craphound.com/down/download.php Critics call it the next thing after Snowcrash... best M -- Monica Narula [Raqs Media Collective] Sarai-CSDS 29 Rajpur Road, Delhi 110 054 www.raqsmediacollective.net www.sarai.net From pedro_paranagua at yahoo.com.br Mon Apr 4 05:25:51 2005 From: pedro_paranagua at yahoo.com.br (Pedro de Paranagua Moniz) Date: Mon, 04 Apr 2005 00:55:51 +0100 Subject: [Commons-Law] Development Agenda In-Reply-To: <1205.10.127.133.110.1112450551.squirrel@gpo.iitb.ac.in> References: <20050402085944.2195828D8C2@mail.sarai.net> <1205.10.127.133.110.1112450551.squirrel@gpo.iitb.ac.in> Message-ID: <42508287.20301@yahoo.com.br> Following Ram's and Shishir's posts on the Devt. Agenda, I forward an article on it, plus a link to the WIPO Manifesto (which also says why Dr. Mashelkar was the chair of the Casablanca meeting): http://www.cic.unb.br/docentes/pedro/trabs/wipo-stats.html The WIPO Manifesto has been delived to WIPO, at that time with 800 signatures; now it has almost 1,200. It would be of much help to have names from this great Indian community signing onto it (some already did). rgds Pedro LL.M. candidate on IP law, class of 2004/2005 Queen Mary, Uni. of London http://www.technewsworld.com/story/41843.html Letter Demands Open Access to Global IP Rights Forum By John P. Mello Jr. TechNewsWorld 03/29/05 8:38 AM PT James Love, director of the Consumer Project on Technology (CPT) in Washington, D.C., said, "[the U.N.'s World Intellectual Property Organization] has been criticized for being way too close to right-holder groups like patent owners, copyright owners, that sort of thing, and pushing an anti-developing-country agenda." More than 1,000 individuals and groups have signed a letter urging the U.N.'s World Intellectual Property Organization (WIPO) to open its meetings next month on global patent and copyright policy to more government outsiders. The forums to be held in Geneva, Switzerland, are expected to set the tone for future action impacting the economic growth of the developing world. In an open letter produced by two Brazilian activists -- Pedro de Paranagua Moniz and Pedro AD Rezende -- and Cory Doctorow, European affairs coordinator for the Electronic Frontier Foundation Latest News about Electronic Frontier Foundation (EFF) in San Francisco, WIPO was encouraged to open its deliberations to a broader spectrum of interested parties. Whipping WIPO "[W]e call for an immediate PARTICIPATION of civil society and consumer-interest non-governmental organizations (NGOs) within WIPO's activities," the letter, titled the "Manifesto for Transparency, Participation, Balance and Access," declared. "Specifically, but not limited to accepting applications from NGOs to serve as ad hoc observers at the upcoming Inter-sessional Intergovernmental Meeting next 11-13 April 2005, and for the Permanent Committee on Cooperation for Development Related to Intellectual Property, next 14-15 April 2005." According to the letter, "there is an evident absence of balance between rights-holder representatives, and public and civil society interests" in WIPO's deliberations. James Love, director of the Consumer Project on Technology (CPT) in Washington, D.C., told TechNewsWorld, "[WIPO] has been criticized for being way too close to right-holder groups like patent owners, copyright owners, that sort of thing, and pushing an anti-developing-country agenda." Developing Nations Revolt "Now there's this revolt within the developing countries themselves to try and rethink the work program for WIPO and the way it operates," he explained. "There's this debate shaping up on the the best way to think about development for developing countries and whether there should be high levels of intellectual property protection or should there be more open source," he continued. Although groups like the EFF and the CPT have accreditation and will be able to attend the Geneva sessions, they will be at a disadvantage at the meetings if their non-accredited allies are not allowed to join them at the forums, Love maintained. Long-Overdue Journey "By limiting it to only the groups that have permanent accreditation, they end up with a very big ratio of rights owners to consumer-type interests because historically the only groups that bothered to be accredited were people like the farming industry or the recording industry, that kind of thing," he said. "It's new that civil society has taken an interest in this committee." According to the EFF's Doctorow, WIPO is an agency in transition. "WIPO is undertaking a long-overdue and halting journey from a place where industrial interests meet to safeguard their marketplace advantages, to a place where the UN's humanitarian values hold center stage," he said in a statement. "This letter is the latest step in the important campaign to refocus WIPO on providing effective technical assistance that meets the real needs of its developing country members." Attitude Change? There were signs this week that WIPO is reevaluating its attitude toward the developing world. In a "communique" issued yesterday by its Working Group of Industrialized Nations on Intellectual Property and Development, it said that it "should do more to ensure that capacity building is targeted to the expressed needs of developing countries." "Capacity building covers not only the building of IP expertise and resources," the communique noted, "but should include ensuring that IP systems in developing countries function to facilitate growth and development." R-E-S-P-E-C-T According to Steve Kunin, an attorney with Oblon, Spivak in Alexandria, Virginia, the relationship between the developed and developing world is very much a tit-for-tat proposition. "It's like a contract where the industrialized nations would like to set up plants and do business in developing countries, essentially hire and train the citizens of that country, but in exchange for that the countries need the proper systems and enforcement mechanisms for protection of intellectual property," Kunin told TechNewsWorld. That simple contract, though, is an imbalanced one in the eyes of some developing nations. "What the developing countries feel that the developed countries don't understand is that there are certain relationships between intellectual property and the economic, social and cultural development of those countries," Kunin explained. "What it comes down to -- particularly in the areas of genetic resources and traditional knowledge -- many of the developing countries feel that the developed countries have trampled on their rights and resources," he continued. "The developing countries want to change that calculus and get much more respect for the natural resources of those countries." Shishir K Jha wrote: >Must thank Prabhu Ram for the posting of two articles on the Development >Agenda. > >It is just very amazing why India is not openly supportive of the >Development Agena. > >I remember reading about India's role at the time of Casablance meet and >was very puzzled. In an earlier WIPO meet at Geneva when the Development >Issue was brought up, it seems that though India was not openly supportive >of the "agenda", it still was rather sympathetic. Something has radically >changed between that WIPO round at Geneva and Casblanca. > >Dr. Mashelkar's role is particularly intriguing. On the one hand his joint >authorship of the London based CIPR [along with Prof. Carlos Correa and >others] suggests that he cannot be averse to issues of development while >on the other hand his viewpoints expressed at a few public forums, that I >have attended, suggests a reluctance or at best great ambivalence in >validating the viewpoints expressed in the CIPR. [See CIPR at >http://www.iprcommission.org/graphic/documents/final_report.htm] > >Questions: Why was Dr. Mashelkar made the chair of the Casablanca session? >Why is India playing such a questionable role at WIPO? Is it the result of >a well thought out position by the Ministeries and policy makers or is it >largely the maneuvering of few influential individuals? > >This is all quite dis-heartening. Too much is riding on the future >possibilities of WIPO for India and the world for us to not take a more >pro-active and supportive role in the development agenda. > >I hope some others could illuminate the dark corners of Indian policy making. > >Shishir K. Jha > > > > >>A group of developing country sponsors of the Development Agenda >>proposal issued a statement criticizing the Casablanca consultation, in >>part because it went beyond the Secretary-GeneralÂ’s mandate from the >>General Assembly. The co-sponsors of the original proposal to establish >>a Development Agenda at WIPO were: Argentina, Bolivia, Brazil, Cuba, the >>Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, >>South Africa, Tanzania and Venezuela. At the meeting, developing >>countries will seek concrete proposals on implementing the agenda, an >>official said. >> >> > > > >_______________________________________________ >commons-law mailing list >commons-law at sarai.net >https://mail.sarai.net/mailman/listinfo/commons-law > > > From aarti at sarai.net Mon Apr 4 15:59:54 2005 From: aarti at sarai.net (Aarti) Date: Mon, 04 Apr 2005 15:59:54 +0530 Subject: [Commons-Law] Ben Attar Lecture: Full Text Message-ID: <42511722.9000106@sarai.net> This is a transcription of Doron Ben Attar's public lecture at the Contested Commons/Trespassing Publics Confernce organised by Sarai-CSDS and Alternative Law Forum in Delhi, on 6, 7 and 8 January 2005. Audio files of the sessions and public lectures can be downloaded for free at: http://www.sarai.net/events/ip_conf/ip_conf.htm We will keep making more material from the conference in the form of reports, audio files and full texts of papers and presentations, available on the sarai website (www.sarai.net) and on the lists, particularly the reader-list and commons-law lists). "U.S Path to Wealth and Power: Intellectual Piracy and the Making of America" We find that historians do not have the clarity of categories that other disciplines have. In fact the task of historians is to make things messy and unclear. However those of us who have been sitting through these talks and discussions, I don't think the American story offers these clear guidelines. China, and everyone today has to start with China because it has been the economic miracle of our time. less than two decades ago, that country defined poverty and underdevelopment. Today China is one of the premier engines of world economic growth. Partly of course due to the political repression that keeps the costs of labour so low. Mao's successors have also realised that in order to join the ranks of the developed nations, China must close the technology gap., and the surest and quickest way to do this is to pilfer western know-how. The Chinese have been quite active. There have been quite a few stories, let me tell you my favourite one: It centers on a woman by the name of Dr. Gao Jang. In February 2001, Dr. Jang who received her PH.D in sociology from the University of Syracuse in 1997 was in China. She was conducting research for her academic work, and was arrested and charged for spying for Taiwan. The whole affair, almost immediately, gained international notoriety. It was covered by all the major newspapers as another story of Chinese tyranny after Tinammen Square, and so forth. In the United States, she was a green card holder not a citizen, both houses of Congress passed a resolution giving her citizenship. She was tried and convicted to spend a few years in prison, but was released after six months in an apparent good-will gesture by the Secretary of State Collin Powell. Ah! you say. Another triumph of human rights against the evil power of tyranny. Well, there's another chapter to this story. It begins two years later. Two years later Gao Jang is again in court, this time in the United States, in the State of Maryland where she plead guilty of being an industrial spy for China. Using the assumed name of Gail Heights and using forged documents that said she was associated with George Mason University, which is a university in the suburbs of Washington DC, Gao Jang went into American companies and delivered to her Chinese counterparts 1.5 million dollars worth of high-tech components. These components included micro-processors which had possible military use. Then she was caught. The depth and extent of the Chinese piracy effort which has included everything from computer software to music, has alarmed members of the United States Congress, from both political parties. In fact it is one of the few issues on which there is bi-partisanship right now in America. The republican Senator Richard Shelby from Alabama, who is chairman of the Senate Select Committee on Intelligence, warned that China's next great leap forward will be made possible through the illegal use of American patented and copyrighted material. During recent Congressional hearings on the piracy of intellectual property and its links to organised crime, and Nitin Govil today spoke about the link between anti-piracy and anti-terrorism in the minds of American policymakers, democratic Senator from California Howard Berman estimated that China's transgression costs the American economy 1.85 billion dollars a year. With this kind of money at stake the conflict over intellectual property has risen to the forefront of conflicts between developed and developing nations. In this conference we have spent a great deal of time discussing the perspective of the developing world. I think we belittle the developed world interpretation at our own peril. I think we should acknowledge it. The developed nations are concerned about piracy by consumers and by producers. On the consumer front, companies and individuals, in developed nations, complain that their creations whether design accessories or drug patents are being copied and sold without authorisation or compensation. Piracy by producers, in the developing world, causes even greater anxiety in the West. The movement of manufacturing to the developing world where raw material is available, and labour costs are low, has rendered intellectual capital the most important asset of modern corporations. It is not an exaggeration to say that intellectual property has become the most important anchor of Western prosperity. China is hardly the only developing nation that engages in intellectual piracy, and Western companies are seeking aid from international agencies to police the developing world. Indeed international agencies have adopted Western standards and have created an agency, the World Intellectual Property Organisation (WIPRO), which is, “ dedicated to helping ensure that the rights of creators and owners of intellectual property are protected world-wide, and that inventors and authors are thus recognised and rewarded for their ingenuity. Some companies are taking matters into their own hands. In a gathering of chief executives of companies last November, the CEO of Metronics, said that top-of-the line technologies would not be moved to the developing world, because of the threat of piracy. This kind of statement, of course, betrays the racial prejudice that still exists about the intellectual capability of the peoples of the developing world in the minds of the leaders of American corporations. Now, unlike many in this conference, I do not consider piracy a social virtue. Nor do I favour doing away all together with patents and copyrights. I think empirical data suggests that sometimes, when checked properly, they are a useful method of promoting social good. But before Americans rush to condemn those pirate our know-how, they must not forget how America became the richest and most powerful nation on earth. At the end of the third quarter of the 18th century, the British colonies of Northern America were mostly underdeveloped agricultural settlements. The foundations for the new American empire were laid during the next seventy or seventy-five years, as the United States was transformed from an underdeveloped, decentralised entity on the periphery of the Atlantic world, into the dominant center of industry, wealth, innovation and power. Piracy of the intellectual property of others played a crucial role in this process. transfer of protected European material was a prominent feature in the political and diplomatic life on the north American Confederation from its early moments as an independent nation. With the signing of the 1783 peace accord with England which officially ended the American revolution, the United States and Great Britain became political and economic adversaries. The founders believed that American political independence depended on economic self-sufficiency, which meant that the young nation needed to reduce its vast consumption of imported English manufactured goods. The new defiant American mood, heightened by war time demands for military industrial goods and by the post-war desire to prove the compatibility of republican government and a high standard of living, viewed technology piracy as the premier tool for industrial development. Perhaps I should do what historians do, and tell a story: In the second week of November, 1787, Finneaus Bond who was the British Consul in Philadelphia, received a visit from two English nationals. They knocked on his door frantically. One was Thomas Edimsor, a cotton merchant from Manchester, and the other was Henry Royal. Henry Royal was a calico printer from Cheshire County. Both men were greatly agitated. They feared they were going to be lynched by the American mob, lead by the leading citizens of the city. They looked to the envoy of his Brittianic Majesty, for shelter. And their story, went as follows: In 1783, concomitant with the signing of the Anglo-American peace accord, an English artisan by the name of Benjamin Phillips, decided he was going to make money in America. He purchased, and sent to America, four machines for the production of textile. One cotton machine, and three spinning machines. There were of course restrictions, he was not officially allowed to do so. But he sent them to America on a British ship called the 'Liberty', in the guise of them being Wedgewood china. He had earlier sent his son to Philadelphia, and his son received the packages. However, Phillips died during the journey, and the son when he received the crates, had no idea what to do with the machines because he was not a trained artisan. So he sold the machines to another transplanted Englishman by the name of Joseph Hague. Hague managed to put the machines together, but he still could not make them work. And so having no capital, and despairing of making the machines work, Hague sold the equipment to Royal, who in turn sold them to Edimsor. Edimsor, who was an English patriot, so to speak, disassembled them and shipped them back to England. According to his testimony he patriotically purchased and repatriated the equipment in order to, �Check the advancement of cotton manufacturing in America.� In the meantime a group of Philadelphia merchants concerned with advancing the cause of the United States economic independence, to compliment the nations newly found political independence, formed the Pennsylvania society for the Advancement of Manufacturing and Useful Arts. This group instigated a search for Hague's machines and became furious when they learned that Finneaus Bond was involved in their repatriation. They turned their wrath on the British culprits who, “ in great dread of suffering from their resentment,” went into hiding for a couple of weeks. Finally, they approached Bond for protection. I'd like to add that royal's statement that he was against piracy was just as believable as the French inspector's statement in the movie Casablanca that he is against gambling as he receives his winnings, because Royal himself was a technology pirate who was in contact with Benjamin Franklin, a few years earlier, and tried to get special benefits for coming to America illegally. Shocked by what Bond called, �the American seduction of British machines and artisans,�� and convinced of the real danger of violence his compatriots faced from the leading men of Philadelphia in their quest to acquire the industrial secrets of the old world, Bond paid a fare for Royal and his family out of his own pocket to send them to England. When the society learned of this, they publicly insulted the British representative. Refusing to be intimidated, Bond researched a bit more and discovered that the slippery character of Hague is an essential link in this story. He learned that Hague had left Philadelphia and was back in England, attempting to procure more equipment for illegal exportation to America. He notified the British foreign Office that Hague could be found in Derbyshire, but by the time the authorities reached, he was gone. He reappeared in Philadelphia the following spring, having successfully smuggled over a new cotton carting machine. Adding insult to injury the Philadelphia legislature awarded him a prize of one hundred dollars for having succeeded in his piracy. The manufacturing society trumpeted this achievement in the press, and showed little concern for intellectual property. �It is with great pleasure we learn that the ingenious artisan who counterfeited the carting and spinning machine, though not the original inventor, being only the introducer is likely to receive a premium from the manufacturing society, besides the generous prize for his machines. It is highly probable, that our patriotic legislature will not let his merit pass unrewarded by them. Such liberality must have the happy effect of bringing into Pennsylvania other artisans, machines and manufacturing secrets, which will abundantly repay the little advance of the present.�� The Bond affair is just one of many amongst such incidents which I chronicle in my book 'Trade Secrets' and it is here that I would like to pause for a second and say that there are three forms of technology smuggling in the 18th and 19th century. One is the knowledge itself, whichever way it comes. It could come as something written or described, but this is quite problematic because descriptions lacked standard measurements. For example in the 18th and 19th century when people would register for patents in the English Patent Office, they were required to give a description of the machine, but they feared if they gave too detailed a description of the machine they feared it would be copied, so their descriptions were always vague. Another form were the machines themselves. But as we noticed in the above story, the machines themselves were not of great use, you had to know what to do with them. Which brings me to the central agent, the people themselves who were central to this process. those in the United Sates who whine about the current process, conveniently forget that 200 years ago, the shoe was on America's foot. American prosperity originated in the piracy of industrial technologies from Europe, primarily from England, in the first half of the 19th century. The process took place in spite of a concerted effort on the part of the British government to keep its trade secrets at home. Prohibitions on the immigration of artisans and the exportation of machinery from the British Empire had been in effect throughout the 18th century. In the mid-1770s in the imperial conflict between the patriots and the metropolis took shape, Parliament ruled that all people leaving for North America from the British Isles and Ireland with the intent to settle there were required to pay 50 pounds per head. After the United States won its independence, growing anxiety in England over industrial piracy lead to stronger legislation and stricter enforcement. Exporting industrial equipment from textile, leather, paper, metals, glass, to clock making was prohibited in the 1780s. The legislations were particularly comprehensive with regards to all that was concerned with the textile industry, covering existing as well as all future developments. Robert Owen, recalling his earlier days in the English textile industry, reported that in the 1780s, �cotton mills were closed against all strangers. No one was admitted. They were kept with great jealousy against all intruders, with their doors being always locked.� My own favourite English tactic was that there were mils in which they employed people who spoke only Welsh, and you will agree with me that nobody speaks Welsh. These people were 'safe', they could not go anywhere or divulge anything. The restrictions provided for a 200 pound fine and twelve months in prison if you were caught smuggling any of the above machines, and if an artisan who tried to smuggle himself out with machines relating to textile, the fine went up to 500 pounds. These were severe fines in the context of how much and English artisan made. The English were so concerned, that in 1785 they even prohibited the export of steam engines. Now, the whole point about steam engines is that you make them and you export them. The only way you can make money from steam engines is by selling them to somebody, but so concerned were they, that they shot themselves in the foot. That ban, however, did not last long. The American founders knew of those restrictions. But they also believed that for the United States to survive politically and economically, it must close the technology gap, and fast. Framers of the United Sates Constitution unanimously approved article one, section 8 which instructed the government to, �promote the progress of science and useful arts, by securing for limited time for authors and inventors the exclusive right to their respective writings and discoveries.� The founding fathers decided upon a mechanism through which original authors and inventors were rewarded for enriching American society with new devices, or with new writings. Inventors and authors were the only, and I repeat only, occupational group given special benefits in the United States Constitution. It is the only section in the Constitution that specifies not only the goals of the future government, but also the mechanism, the strategy through which that goal could be attained. And at some level we don't quite know why. There is no real discussion of this most radical step by the founding fathers. A bill to establish a patent system was introduced in the first session of the United States Congress, but it did not reach the floor. Congress took up the matter in its subsequent session. The initial proposal, by in large, followed the English patent system. Here I must add that the English system of intellectual property was founded on the promotion of piracy. In the 14th century England was not as it is now, a rainy island, it still is, but then it was also incredibly underdeveloped in comparison to Europe. The monarchy wanted to lure European artisans to England. But what can you offer them in England? A rainy, dreary, poor island. Well, you can offer them a production monopoly. Only in the 17th century do inventors get what introducer's got in the 14th century and as late as the 1770s an English court ruled in favour of an introducer against an English claim to an invention. What we need to understand, is that the English law of patents grants what is known as 'patents of importation' to introducers. Introducers and inventors are different categories and yet in the English system they are not distinct. Both inventors and introducers can receive patents. Likewise the initial patents bill gave all the privileges to introducers that it would give to original inventors. President Washington however was not happy with the pace at which the proceedings were going and in his first State of the Union address he actually pleaded with Congress to enact legislation to encourage, �skill and genius at home, and the introduction of new inventions from abroad.�� So a State of the Union address by an American president calls for a law to encourage piracy. Alexander Hamilton was the dominant person in the Washington administration, as Secretary of the Treasury. Hamilton deplored the American dependency on European imports. He described the difficulties of American manufacturing through technological deficiency and wrote that the gap between Europe and America manufacturing would diminish, �in proportion with the use that can be made of machinery.�� He called on the Federal government to establish an auxiliary agency to coordinate the piracy of European technology. He proposed to market American industrialisation in Europe, in other words to spread the word, to encourage people to come. These when you could not simply get a passport and go, but when everyone was, by law, tied to locations. He proposed to encourage industrial immigrants to come by offering them travell subsidies, exemption from customs for their tools and implements of trade, household goods and so forth. �The public purse must supply the deficiency of private resources for as soon as foreign artisans be made sensible to the state of things here affords a moral certainty of employment and encouragement, competent numbers of European workmen will transplant themselves effectively to ensure the success of their design.� The industrialisation of the United States, Hamilton concluded, would for a great measure depend on foreign stock. So Congress set out to write an American patent bill that would conform to the wishes, and sentiments, of the two most important politicians, President Washington, and Secretary of Treasury Hamilton. The House of Representatives produced a vision granting introducers of pirated technology the monopoly privileges that were granted to original inventors. But the United States Senate, however, did not go along. It amended the bill to grant patent monopolies only to inventors of machine, and I quote, � not before known or used.�� And it deleted the location qualifier of the House version which had added to that, �within the United States.� The elimination of these four words was really revolutionary. The first United States Patent Act broke with the European tradition of patents of importation. It restricted patents exclusively to original inventors and established the principle that prior use anywhere in the world were grounds for invalidating a patent. The criterion is particularly puzzling because the young nation needed to import technology to develop its industrial base. And moreover, the two most important statesman of the era, Washington and Hamilton, supported granting patents of importation. Now, the 1790s Act itself was problematic. It established a patent board consisting of Secretary of War, Attorney General and Secretary of State who were to examine each and every patent and decide whether it should be granted or not. Chairing the board was Secretary of State Thomas Jefferson. Jefferson had a very high opinion of himself in all matters, and if you go to his house in Monticello, you will see that he was a huge tinkerer. Monticello is one of the funniest places to go to. Its a real comedy. He started to create all sorts of things which he never finished. He tried to create a way to make time through the wall, and he had to dig into the basement, the stairs were too narrow so he couldn't bring furniture up. He thought he was a tinkerer and a mechanic and he wanted to examine each and every application. They just couldn't. The volume of applications was so great that it was clearly impossible for anybody, any single person what people were actually filing patents for. And so in 1793 Congress relieved members of the board from wasting their time examining individual patents, and deputed this to a clerk in the State Department. The patent became a registration of a claim which anyone could make provided that he paid the fee, and that no similar claim was submitted and registered, and that he filed the forms. Acquiring a patent depended exclusively on prompt completion of the necessary bureaucratic paperwork. The revised system maintained the dual demand for novelty and originality, requiring each patentee to take an oath that he or she was indeed the first and original inventor. The disputes that were likely to arise from this strictly bureaucratic registration were to be resolved by a board of arbitrators, and if this failed it would go to the courts. A revision in 1800, required an oath by all applicants to th effect that, �their invention, art or discovery, have not been known or used in this or any foreign country.� Now, textual examination of the law might give the impression that the young republic was rejecting technology piracy, and establishing a new intellectual property moral code. But before Americans break into their, all too familiar, self-congratulatory verse about the virtuous foreign policy of the republic it is worthwhile to examine what actually happened. How did the American patent system actually operate? First, we should remember that every founding father of the United States, including those who we most esteem, from Franklin to Jefferson, understood the inferiority of American technology, they viewed it as a problem, all believed that American economic independence was necessary because political independence without economic independence was meaningless, they believed that the only way to catch up is through piracy and all of them supported it. And every one of them, in one or the other, engaged in the practice. But this, if you wish, is maybe not that important. In theory, the United States pioneered a new standard of Intellectual Property that set the highest possible standards for patent protection, of worldwide originality and novelty. By the intellectual property laws Congress enacted in the first 50 years of its existence, were but a smoke-screen for a very different reality. And this is where historians come in handy. The statutory requirement of worldwide originality and novelty did not hinder widespread and officially sanctioned technology piracy. William Thornton, who administered the American Patent office for much of its life, did not insist on the oath of worldwide novelty. Not that taking an oath means you are telling the truth, but lets assume that you are. It is indeed entirely possible that most of the patent application received were for devices that were already in use, since acquiring a patent required little more than successful completion of paperwork. The Patent Act of 1793 allowed the patent office to receive patents that infringed the intellectual property of others. Moreover the Act explicitly prohibited foreigners from obtaining patents in the United States for inventions that had been put to work elsewhere in the world. This meant that while the United States citizens could petition for introducers patents in European nations, European inventors could not protect their intellectual property in America. The American patents system, then, sanctioned technology piracy, as long as imported technology was not restricted exclusively to any particular individual introducer. Intellectual property in the early republic favoured operators, developers and entrepreneurs at the expense of investors and inventors. So, whats going on? Whats going on is that we have a new understanding of the proper arena for technology piracy. A self-respecting government eager to join the international community on an equal basis could not flaunt its violation of the laws of other nations. Patents established under the semi-anarchic conditions of the revolutionary and confederation periods were inappropriate behaviour for a respectable member of the international community. This all the more so in the case of the nascent Washington administration. After all the most important task of the administration is to achieve legitimacy. Its important to note that the United States was not considered a nation by any other nation in the world at that time. No nation sent representatives to America. In fact, in the 1780s, the President of the American Congress, Nathanial Greene, wrote to the brother of the king of the Habsburg Empire, asking him to come and become the king of the United States because things were such a mess. And that royal responded by saying that he would not come because Americans obviously do not show sufficient respect for royalty. So America was that close to becoming a monarchy. People also fail to note that there were fifteen presidents before George Washington. Nobody needs to know that because they were powerless and meaningless. I mean the only reason I know their names is because I teach American History, but I still have to read them form a list. I mean the United States was truly a meaningless entity. The peace accord with England was extremely beneficial to the United States. The British wanted to give the Americans a good deal because they were concerned with other affairs in Europe. But there was not even a sufficient quorum in the United States Congress to ratify the peace accord and England could have revoked it. By the way, if England would have revoked it, the Ohio valley would have been part of Canada. England gave America the Ohio valley for no good reason - there were no American soldiers there. So the degree of ineffectiveness was so great, which is what brought about the gathering in Philadelphia which formed a Constitution, and the Washington administration had to establish international and domestic legitimacy. A country seeking legitimacy could not begin by telling the world it was going to steal the technology of others. To be sure, clandestine appropriation of English technology not only persisted, but also intensified. Every major European state engaged in technology piracy and industrial espionage in the 18th century. The United States could not afford to behave differently. Yet, there was an etiquette to piracy. It was undertaken in secret, and officials would deny any connection to such practices. The British efforts to keep innovations from leaking across the Atlantic, proved futile. Inventors and entrepreneurs easily found ways to circumvent laws that aimed to keep know-how and production at home. Ten of thousands of artisans crossed the Atlantic and brought with them their skills, methods and tools. Piracy became the de-facto defining feature of American industrial policy in the decades following independence. America emerged as the leading industrial nation in the world, and Britian simply raised its hands and revoked its restrictions, first in the 1820s and then the 1840s. The young republic embraced a janus-faced approach. In theory it pioneered a new standard of intellectual property with the highest possible requirements- world-wide novelty and originality. In practice the country encouraged widespread piracy and industrial espionage. Piracy took place with the full knowledge, and sometimes even aggressive encouragement, of government officials. Congress never protected the intellectual property of European authors and inventors, and Americans did not pay for reprinting of protected works and unlicensed use of patented inventions. Lax enforcement of the intellectual property laws was the primary engine of the American economic miracle. The early republic made no effort to embrace its ground-breaking patent laws. The first decades of national independence saw the most intense pursuit of English technology on the Federal and State level. Those efforts were particularly successful in the textile industry. A small -scale capacity to build and operate the newest mule-spinning technologies sprang up in a variety of spots in the North-Eastern urban centers. Indeed piracy was crucial to this development of the republic. Its bookstores and libraries were mostly composed of un-authorised reprintings of British authors. A phenomenon, which I understand is similar, to rampant piracy of music by consumers in todays developing world. On the producer front, the violations were even more blatant. A British attorney reported in 1818 that European discoveries in arts and sciences generally reached the United States within a few months after they first saw the light in their own country and, �soon become amalgamated with those made by Americans themselves.�� When the patent law was reformed again in 1836, it was no longer necessary for the nation to pretend that it would protect the intellectual property of non-Americans. Indeed the 1836 Act removed the prohibition on patents of importation. And whereas the 1836 Act no longer restricted patents only to US citizens, it did set the registration fee for foreigners at ten times the rate for Americans. I would point out to you that sounds pretty extreme right? But, when I went to visit some sites in Delhi, foreigners pay entry fees of Rs. 250 and locals pay only Rs. 10. I am registering an official protest by the way, and I wonder why I can't pass as an Indian. In 1861 the Act was reformed again to give foreigners almost equal footing. US copyright protection, was restricted to United States citizens even longer. And when those were removed, other regulations such as requiring the use of American typesets delayed American entrants to the Berne Copyright Convention till 1989, more than a hundred years after Great Britain joined. So, to a very large extent the industrialisation of the United States in the first half of the 19th century relied upon pirated know-how. In textile some followed Robert Lowell, who went into English factories and wrote down what he saw and then delivered it at home. By far the most important agents were the European artisans. As late as the 1850s, migrants from the British Isles comprised more than three-fourth of the weavers and skilled workers in the textile industries of German Town, Pennsylvania. Managers in cotton mills in the first half of the 19th century, were for the most part, English immigrants because native experienced managers were rare. American glass manufacturers recruited European workers aggressively in the first two decades of the 19th century, and by the 1820s the United sates was the world leader in glass manufacturing. Paper mills in New England relied on a constant stream of European immigrants before local industry took off in the 1830s and 40s. In all these cases European know-how was instrumental in getting industry started and turning America into the leading industrial nation. A dual intellectual property regime fuelled the 19th century economic miracle. In theory the nation was committed to protecting the intellectual property of author and inventors, but authorities did little to enforce the laws. By granting unenforceable patents to patentees, The United States acquired a reputation of being friendly to innovation, while at the same time, by declining to crack down on technology pirates, it allowed for rapid dissemination of information that made American products better and cheaper. >From the American Revolution to the crystal palace exhibition of 1851, where American technology was exhibited and recognised as the leading in the world, United States technology caught up with and surpassed its European rivals. The industrialisation that took place along the North-Eastern seaboard in the first half of the 19th century, facillitated a dramatic two-third growth in per capita income. The United States economy grew faster, and was faster, than any other European nation. Contemporary historians have come up with a wide range of social, cultural and political explanations of this dramatic development. Some celebrate it as the ultimate manifestation of the American spirit of enterprise. Others argue that the blood and sweat of slaves provided the economic capital for the remarkable growth in the first half of the 19th century. What is often overlooked is the manner by which smuggled technology made for more efficient and profitable industrialisation. Tens of thousands of artisans crossed the Atlantic and brought with them their skills, methods and tools. American industrialists, scientists and intellectuals kept abreast with mechanical developments through trips to Europe, and the growing scientific exchange. Federal and State authorities were officially committed to respecting the intellectual property of others, yet in fact sanctioned smuggling of protected technology on a huge scale. American investors and inventors modified imported technology to local circumstances. The infantile state of American know-how and the absence of established classes, committed to earning their livelihood from known and tried techniques, freed innovators from whole scale adoption of imported technologies in favour of innovations Europeans often deemed too costly and impractical. Technology transfer then, accounts not only for the rapid economic growth of the republic, but also for the experimental and innovative reputation of what came to be known as the, �American system of manufactures.� Crystal Palace turned out to be the coming out party for American technology. In the span of seventy years, an agricultural republic, with some household manufactures, that had more in common with the middle-ages than the industrial world, transformed itself into the world leader of cutting-edge industrial technology. American machines, and the American system of manufactures, became the model for worldwide imitation. Similar to modern developing nations, early in its history, the United States violated the intellectual property of rivals in order to catch up technologically. Integration into the international community required that the government of the United States, distance itself from such rogue operations. In this process, the United States had come full circle. The fledgling republic, once committed to technology piracy, had become the primary technology exporter in the world. The years of piracy upon which the current stature was founded, however, were erased from the American national memory. The intellectual debt owed to imported technology, did not turn the United States into a champion of the free exchange of know-how. As the diffusion of technology began to flow eastward of the Atlantic, the United States emerged as the world's foremost advocate of extending intellectual property to the international sphere. From skjha at iitb.ac.in Mon Apr 4 22:16:33 2005 From: skjha at iitb.ac.in (Shishir K Jha) Date: Mon, 4 Apr 2005 22:16:33 +0530 (IST) Subject: [Commons-Law] WIPO - Development Agenda In-Reply-To: <20050403235529.D0CE828D910@mail.sarai.net> References: <20050403235529.D0CE828D910@mail.sarai.net> Message-ID: <1158.10.163.30.66.1112633193.squirrel@gpo.iitb.ac.in> I did find something afterall on "resistance" to the WIPO development agenda. Shishir K. Jha From prabhuram at gmail.com Mon Apr 4 23:54:59 2005 From: prabhuram at gmail.com (Ram) Date: Mon, 4 Apr 2005 20:24:59 +0200 Subject: [Commons-Law] WIPO - Development Agenda In-Reply-To: <1158.10.163.30.66.1112633193.squirrel@gpo.iitb.ac.in> References: <20050403235529.D0CE828D910@mail.sarai.net> <1158.10.163.30.66.1112633193.squirrel@gpo.iitb.ac.in> Message-ID: <68752c9f05040411243ddc7e2c@mail.gmail.com> Dear all, Heres some more "food for thought" on WIPO. "Wipo itself is not quite that open or open-minded. At two Wipo meetings this month, all 182 member nations will discuss intellectual property enforcement and its effect on development, and on developing countries. Mr Idris and his board decided to bar participation by the top experts in the field: public interest groups. They are not permanently accredited by Wipo, and apparently it is a full-time job to observe the UN body if you want to give your opinion about its work." More below from this article published in today´s Bangkok Post- Ram Entertaining ideas of greed The entertainment industry likes to hold things back, yet inevitably profits when they move forward By ALAN DAWSON If you are under 35, you probably grew up with a video player and recorder attached to a television set in your home _ it may still be there _ and used it for recording shows so you could watch them at a more convenient time, or because you weren't home when they showed. You certainly watched movies on it, rented or bought or traded. Yet if the movie, music and television companies of the 1970s had got their way, videotape machines would not exist today. These businesses sued Sony Corp in a number of courts to ban the new technology because it was clear that many people would use video recorders to make copies of movies from the TV screen and from their friends' tapes. This would mean no one would go to movies any longer, and the entertainment industry would die. In the landmark court case, the US Supreme Court ruled in 1984 that people had the right to use the new video machines and Sony had the right to sell them. Then three things occurred. Sony's Betamax video machines flopped and VHS video became the standard. The sales of videos and music and TV advertising grew at a record pace, and more people went to the cinema than ever. And Sony became a ``content'' company, producing music and movies and TV shows, only to become a major litigant in the landmark case of internet copying in 2005 _ a demand that the US Supreme Court make file-sharing over the internet illegal. The entertainment industry has in fact launched lawsuits at every stage of technology in the past 100 years. The industry sued to make radios illegal because people would not go out to listen to live music any longer. It sued to make car radios illegal, recorded TV shows illegal, the showing of movies on TV illegal. A long series of lawsuits argued that jukeboxes would be the death of the entertainment business. And so on. Four years ago, the Recording Industry Association of America sued a small company called Rio, intimidating it into stop making a small and portable machine that could copy and replay digital music. Rio went out of business. Apple Computer began making such machines, a decision that turned into the iPod and boosted sales of music by 100 million songs at the Apple iTunes website alone, making millions of extra dollars for the music industry, and in some rare cases even for the artists who wrote and recorded the music. Now on April 26, the entertainment industry and its highly paid lobby will declare World Intellectual Property (Wipo) Day. You will be instructed to support copyright, oppose piracy, and also, as the Wipo lobbyists put it, ``mount an essay competition in local schools'', or ``organise workshops on how businesses... can benefit'' and, of course, ``work with local newspapers to publish editorials encouraging respect for the rights of creators''. These are all worthy tasks. Pushing your newspaper for another editorial is even logical. We depend on copyright to make a living, after all. You may steal this newspaper and get away with it, but you cannot successfully steal and reprint and sell this newspaper's content. But here are some other ideas on how you can celebrate International Wipo Day, which even has its own website at tinyurl.com/6dgrp. In fact, you can start by organising a discussion on ``How does this Wipo website and posters and proclaimed days exist?''. Wipo says it is a UN-specialised agency with 1,000 employees, several diverse tasks and ``largely self-financed''. Discuss the meaning of this term. Investigate whether Wipo produces any income, or whether it only uses money. Speculate whether any of this money comes from the entertainment industry and thus does not go to the starving artists and authors mentioned in the editorials. Kamal Idris, the head of Wipo, has a glowing tribute to intellectual property idealism. ``Our goal for World Intellectual Property Day and beyond should be to encourage young people everywhere to recognise... the artist within themselves. From the classrooms of today will come the entrepreneurs, the scientists, the designers, the artists of tomorrow. Wipo is committed to promoting a culture in which young people can realise this potential.'' Excellent words. Wipo itself is not quite that open or open-minded. At two Wipo meetings this month, all 182 member nations will discuss intellectual property enforcement and its effect on development, and on developing countries. Mr Idris and his board decided to bar participation by the top experts in the field: public interest groups. They are not permanently accredited by Wipo, and apparently it is a full-time job to observe the UN body if you want to give your opinion about its work. The European office of the watchdog Electronic Frontier Foundation said the decision is a backdoor slap at consumers. ``Without the public interest organisations, the discussions will be heavily weighted towards major motion picture studios, broadcasters, pharmaceutical giants and other powerful interests that want to expand copyright and patent law.'' The always puckish Need To Know internet journal suggests those who support copyright hold book-burning parties on April 26. No, not that kind; ``burn'' some of the tens of thousands of wonderful books out of copyright on to CDs so others can read them for free. Get some of the most popular at www.Gutenberg.org. Get on the internet and visit two new websites. At Peer Impact, you can download music and get discounts if you let other people download from you. Ourmedia.org actually encourages Mr Idris' young people to recognise the artist within themselves by letting them post their music, videos, writings and other intellectual property to let others share it. The purpose of intellectual property rights is nowhere better defined than in the American constitution, which states authors and inventors should enjoy exclusive rights for a limited time only, because the value of IP is ``to promote the progress of science and useful arts''. Record companies receive profits for taking a chance on new artists, but they do not have the right to those profits forever. That is not intellectual, only greedy. The entertainment industry has attempted to ban every new technology since the megaphone. They have failed, thankfully, and every new technology has brought new customers and higher sales to the entertainment industry _ no exception. If the US Supreme Court shuts or muzzles the peer-to-peer file-sharing, then the entertainment business will tighten its grip, increase control, but lose customers and sales. And if the ban succeeds, then current technology like the iPod and TiVo digital recorders will fade and die, and no further development will take place. Pirates use internet peer-to-peer services without doubt, and for now probably are the biggest users. If you are over 30 you remember when pirates were the biggest suppliers for Thailand's video recorders and players. But pirates also use Bangkok office buildings and street stalls, killers use knives, wife-beaters use football boots and bank robbers use computers. Banning the technology won't prevent the crime. BANGKOK POST On Apr 4, 2005 6:46 PM, Shishir K Jha wrote: > I did find something afterall on "resistance" to the WIPO development agenda. > > Shishir K. Jha > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > -- Prabhu Ram, Max-Planck-Institut for Intellectual Property, Competition and Tax Law, MarstallPlatz 1, 80539 Munich GERMANY Tel: + 49 89 24246226 Mob: + 49 17629830521 Web: http://infoserve.blogspot.com From supreet.sethi at gmail.com Tue Apr 5 11:29:40 2005 From: supreet.sethi at gmail.com (Supreet Sethi) Date: Tue, 5 Apr 2005 11:29:40 +0530 Subject: [Commons-Law] yahoo launches search engine for content under creative common Message-ID: Yahoo! has launched a search engine for searching contetn under creative commons licence. More at http://news.com.com/2100-1038_3-5633649.html Search engine (still in beta) can be reached at http://search.yahoo.com/cc See above links to find out how this search engine is different from normal search. From tahir.amin at btopenworld.com Tue Apr 5 12:00:05 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Tue, 5 Apr 2005 07:30:05 +0100 (BST) Subject: [Commons-Law] India launches draft strategy for biotech development Message-ID: <20050405063005.74770.qmail@web86105.mail.ukl.yahoo.com> India launches draft strategy for biotech developmentT. V. Padma 1 April 2005 Source: SciDev.Net [NEW DELHI] India has unveiled a draft strategy for developing biotechnology over the next decade, with a special focus on easing regulatory mechanisms and increasing biology education and training. The strategy could help India's biotechnology sector generate revenues of up to US$5 billion annually and create one million jobs by 2010, says Department of Biotechnology secretary Maharaj Bhan. Released on the department's website yesterday (31 March) by science minister Kapil Sibal, the draft is open for public comments for six weeks, after which time it will be finalised. A key feature of the draft strategy is the proposal to set up an autonomous National Biotechnology Regulatory Authority to approve biotechnology products — until now, a task handled by the Genetic Engineering Approval Committee of the Ministry of Environment and Forests. Bhan says the new regulatory authority would have separate divisions devoted to three areas: agricultural products and transgenic crops; pharmaceuticals and industrial products; and transgenic food, feed and animal aquaculture. The idea follows recommendations by two expert panels on agricultural and pharmaceutical biotechnology products, headed respectively by India's crop expert M. S. Swaminathan and by Raghunath Mashelkar, director general of the Council of Scientific and Industrial Research (see Indian panel urges shake-up of GM approval). The strategy highlights the need to streamline guidelines and procedures for approving genetically engineered pharmaceutical products, which it says is currently a complex process involving multiple ministries and regulators that lack coordination. Besides clarifying regulatory mechanisms, there would be a focus on developing human resources — students specialising in biotechnology, researchers, teachers of biotechnology courses and technicians. The government will set up a national task force on education and training to formulate model undergraduate and postgraduate courses in life sciences, create special scholarships, increase the number of PhD fellowships from 50 to 200, and increase the exposure of students to industry and national institutes, Bhan says. Other action points include setting up new centres of excellence in food biotechnology, herbal medicine, molecular medicine, biomaterials and devices, and bioinformatics. Send instant messages to your online friends http://uk.messenger.yahoo.com -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050405/1126fea3/attachment.html From prabhuram at gmail.com Tue Apr 5 13:52:28 2005 From: prabhuram at gmail.com (Ram) Date: Tue, 5 Apr 2005 10:22:28 +0200 Subject: [Commons-Law] Hindu Businessline: Pharma MNCs may tighten hold on patents Message-ID: <68752c9f050405012262522159@mail.gmail.com> >Hindu Businessline Pharma MNCs may tighten hold on patents Tuesday, 05 April , 2005, 08:26 New Delhi: With fewer innovations in the pipeline, multinational pharmaceutical companies may become more aggressive in protecting their patent rights, making it tougher for generic companies to manufacture cheaper versions of drugs. According to investment banking sources, multinational pharma companies will now try to safeguard their turfs much more zealously. "This is primarily because the overall number of blockbuster drugs has come down. Also, the future product pipeline is not very buoyant. Therefore, if they wish to retain the topline growth, these companies will try to adopt creative strategies and draw tighter patents making it difficult for generics to enter the market." It is estimated that drugs facing patent expiration in 2005 are worth $9 billion (Rs 39,150 crore) in annual sales, with another $19.5-billion (Rs 84,825 crore) worth drugs going off-patent in 2006. Industry officials said that Indian companies would increasingly have to chalk out their strategy very clearly. "They would have to factor in litigation costs in the overall business strategy. It is the case of high-risk high-reward wherein if the company wins a patent challenge, it would stand to make huge gains. On the flip-side, a loss could result in the company having to pay up huge damages," said a pharma company official. Also, domestic companies may not have the balance sheet size to match the huge war chests that the MNCs have, he added. Another top official said that currently there are only a handful of large generic companies in the country. "If these companies are seen to be getting beaten in patent challenges, others may be deterred to foray the international markets, delaying the problems for multinationals." Meanwhile, legal experts are concerned on the different verdicts spelt out by courts in different countries on patent challenges. "Companies are fighting patent challenges for the same product in different countries. We will have to see whether a decision by, say, a European court would have a bearing in the US or any other country," said a Delhi-based patent attorney. Increasingly, there could be more number of out-of-court settlements or other mutually beneficially agreements between generic and innovator companies, he added. The patent tussle came to the forefront recently after a US court passed an injunction preventing Teva Pharmaceuticals and Ranbaxy from manufacturing the generic version of Pfizer's Accupril. So, even as Pfizer has decided to claim damages, the two generic companies are gearing up for a protracted legal battle. Research reports indicate that in just two months of generic Accupril launch, Ranbaxy and Teva grossed 43.6 per cent share while Pfizer's authorised generic company, Greenstone, gained 39.7 per cent share. -- Prabhu Ram, Max-Planck-Institut for Intellectual Property, Competition and Tax Law, MarstallPlatz 1, 80539 Munich GERMANY Tel: + 49 89 24246226 Mob: + 49 17629830521 Web: http://infoserve.blogspot.com From prabhuram at gmail.com Tue Apr 5 18:06:14 2005 From: prabhuram at gmail.com (Ram) Date: Tue, 5 Apr 2005 14:36:14 +0200 Subject: [Commons-Law] New Patents law comes into force with President's assent Message-ID: <68752c9f0504050536542c93ff@mail.gmail.com> >Press Trust (PTI News) New Delhi, Apr 5 (PTI) The new Patents law, which was passed by Parliament in the third week of March, came into force today with President A P J Abdul Kalam giving his assent. "President Kalam today signed the Patents (Amendment) Bill. With this, the law comes into force," Commerce and Industry Minister Kamal Nath told reporters on the sidelines of a FICCI meeting with the visiting German delegation. Parliament had passed the law to replace the Ordinance after incorporating 15 amendments, including 11 suggested by the Left parties to provide adequate safeguards to ensure that essential drugs were available at affordable prices. The new law provides for product patents in pharma and agri-products which were not allowed earlier. The law, which was brought in to fulfill WTO obligations, first came in the form of an Ordinance on December 6 last year. Nath also said a high-level committee of experts would be set up shortly to look into some of the issues pertaining to TRIPs in the patents law. He had promised to constitute the committee during the passage of the legislation in the Lok Sabha following the objections raised by the Left Parties. On the forthcoming Foreign Trade Policy, Nath said it would lay thrust on marine and pharma sectors to raise exports to 150 billion dollars by 2009. Regarding the new scheme to replace the Duty Entitlement Pass Book scheme, he said the new scheme has been prepared and inter-governmental consultations were on to finalise it. PTI -- Prabhu Ram, Max-Planck-Institut for Intellectual Property, Competition and Tax Law, MarstallPlatz 1, 80539 Munich GERMANY Tel: + 49 89 24246226 Mob: + 49 17629830521 Web: http://infoserve.blogspot.com From prabhuram at gmail.com Tue Apr 5 23:35:14 2005 From: prabhuram at gmail.com (Ram) Date: Tue, 5 Apr 2005 20:05:14 +0200 Subject: [Commons-Law] Re: "Bikram Yoga"(c) In-Reply-To: <68752c9f05032111504b5f3130@mail.gmail.com> References: <68752c9f05032111504b5f3130@mail.gmail.com> Message-ID: <68752c9f0504051105f9dc4cf@mail.gmail.com> Dear all, This is an update to an earlier posting made by me on the above issue- Ram >New York Lawyer Man Takes Claim He Holds Copyright on Yoga Poses to Court New York Lawyer April 5, 2005 By Jeff Chorney The Recorder Cobra, rabbit and half-tortoise are headed for trial. In a mixed ruling Friday, U.S. District Judge Phyllis Hamilton denied both plaintiff and defendant summary judgment in a dispute over whether a yoga entrepreneur can copyright a sequence of yoga poses. Open Source Yoga Unity had sued Bikram Choudhury after Choudhury sent cease-and-desist letters to yoga studios that he believes were ripping off his intellectual property. Choudhury is the most recognizable proponent of so-called "hot" yoga, also known as Bikram yoga. He has registered a copyright for a sequence of 26 asanas, or poses, to be performed in a heated room. Most yoga classes don't follow strict sequences and aren't specially heated. Open Source believes ancient yoga techniques cannot be copyrighted and wanted a pre-emptive declaration from the courts to stave off any infringement claims Choudhury might make. But in her order Friday, Hamilton leaned in favor of Choudhury. "[Open Source] has provided no persuasive authority that a compilation of yoga asanas cannot be protected under the copyright laws in the same manner as other compilations," Hamilton wrote. "Therefore, if the trier of fact determines that a sufficient number of the individual yoga asanas are arranged in a sufficiently creative manner, copyright protection for the yoga sequence would be available." Although the spectacle of people exerting themselves is unlikely to occur at trial, Hamilton nevertheless acknowledged the case was unusual. "The court, while recognizing, and even agreeing that application of the law of compilations to yoga asanas appears to violate the spirit of yoga, has been unable to locate any authority that precludes such application," Hamilton wrote. Susan Hollander, a partner at Manatt, Phelps & Phillips who represents Choudhury, said she took that as a nod to media stories that have portrayed Choudhury as trying to copyright ancient techniques that are in the public domain. ................................................ -- Prabhu Ram, Max-Planck-Institut for Intellectual Property, Competition and Tax Law, MarstallPlatz 1, 80539 Munich GERMANY Tel: + 49 89 24246226 Mob: + 49 17629830521 Web: http://infoserve.blogspot.com On Mar 21, 2005 9:50 PM, Ram wrote: > >From the Los Angeles Times > > Bikram goes to the mat > > By copyrighting a sequence of yoga poses, a guru upset the > discipline's harmonic balance. Now he's in court. > > By Hilary E. MacGregor > > Times Staff Writer > > Published March 21, 2005 > > If yoga has been around for 5,000 years, can a 21st century > businessman claim to own a piece of it? Bikram Choudhury says yes. > > The flamboyant Beverly Hills yoga mogul, who popularized his style of > yoga and then franchised a chain of studios bearing his name, has long > rankled traditionalists, who dislike his tough business tactics and > brash outspokenness. Now Choudhury is facing a challenge in a San > Francisco courtroom, where a federal judge is hearing arguments in a > lawsuit that some legal experts say could define a new frontier in > intellectual property. At issue: Can Choudhury take a sequence of two > breathing exercises and 26 yoga poses from an ancient Indian practice, > copyright it and control how it is practiced? > > The legal protection he is allowed may depend on whether yoga is > defined as an exercise regimen, a sport, a spiritual practice or a > choreographed form of expression, like music or dance. The case, says > UCLA law professor Neil Netanel, "really depends on an issue that > isn't covered in the law: What is the nature of yoga?" > > Some legal experts believe the case could have broader implications, > not just for yoga but for many forms of physical exercise. > > Stanford University Law School professor Paul Goldstein said a > decision in Choudhury's favor would have "clear implications for any > other activity that entails a combination of movement and > environment," such as choreography or martial arts. "It could also > have implications for basketball plays, or football plays, if it were > decided that way." > > Adds Jim Harrison, a Sacramento attorney representing a group of yoga > teachers and students who filed the lawsuit against Choudhury > challenging his copyright claims, "If Bikram is successful, people > will run to copyright bench-pressing and stepping." > > Choudhury's yoga is made up of a sequence of 26 postures (each of > which is performed twice during a single class) and two breathing > exercises. These postures are culled from 84 classical postures and > more than 10,000 combinations. > > In Bikram classes, the room is heated to more than 100 degrees, he > says, to work bodies like a blacksmith. > > Choudhury says his sequence, practiced exactly the way he instructs, > has medical, mental and spiritual benefits. He claims it can lower > blood pressure and cholesterol, cure arthritis, and heal reproductive > and spinal problems. > > He also claims to have revived the athletic careers of Kareem > Abdul-Jabbar and John McEnroe and to have cured former President > Richard Nixon of phlebitis. > > While legions of lithe practitioners swear by the health benefits of > his yoga, Choudhury offers no more than anecdotal evidence that his > sequence of poses, performed in a sweat-laden room, offers any of the > benefits he claims. > > There are currently more than 1,300 Bikram Yoga studios around the > world (about 1,200 of them in the United States), taught by certified > Bikram Yoga teachers. Choudhury estimates that 400 of them teach their > classes correctly — that is, according to the way he prescribes. The > rest offer modified versions of his program, with various levels of > adherence to his sequence of poses, room temperature and other rules. > Also, many gyms and studios offer hot yoga, sometimes calling it > Bikram yoga, with teachers both certified and not. > > Choudhury doesn't like it when others mess with his system. > > "My system works, as long as people let me do my job my way," he said. > "It is not just the sequence, it is how you do it: the timing, the > mirrors, the temperature, the carpet. But if people only do it 99% > right, it is 100% wrong. When someone tries to mess with it, the > people won't get the yoga benefits. Then it is just calisthenic > exercise, like running, jogging or swimming." > > Many in the yoga world contend that Choudhury has done nothing more > than take 26 yoga moves and put them in sequence. Many classic and > modern yoga styles involve sequences. But no one's ever claimed > exclusive ownership of them and tried to control their practice > through copyright. > > Choudhury has tried various legal maneuvers to protect what he > considers his intellectual property. For example, teachers at his > franchised studios are supposed to follow an approved text, or > "dialogue," that he has copyrighted. He has also copyrighted the name > of his studios (Bikram's College of India) and the name of his yoga > program (Bikram Yoga). > > John Marcoux, an intellectual property lawyer who runs two Bikram > studios in Chicago and who advises Choudhury on various legal issues, > says Choudhury is trying to "keep the yoga pure." > > "What he is doing is like copyrighting a song," Marcoux said. "It is > not the notes, but the way you sequence the notes, that distinguish > Beethoven from the Beatles." > > In 2002, Choudhury began to crack down on those who tinkered with his > teaching formula. His attorney sent out cease-and-desist letters to > numerous studios teaching Bikram yoga, accusing them of violating his > rules. In February 2003, according to court documents, Choudhury > posted a notice on his website that he had obtained a copyright > registration for his asana sequence. The notice warned of possible > legal action against violators. > > "Virtually all modifications or additions to the sequence will > constitute copyright infringement, including: the unauthorized use of > even a small number of consecutive postures; the addition of different > postures or breathing exercises to the sequence or portions of the > sequence; the teaching or offering of the sequence with or without the > Dialogue; or by addition of extra elements to the sequence, like > music." The posting also said Choudhury would seek damages up to > $150,000 for each infringement. > > After he sued an Orange County yoga studio for copyright and trademark > infringement in 2002, a small group of yogis went on the > counterattack. Taking a page from the "open source" movement in the > computer software world, they called themselves "Open Source Yoga > Unity." > > The group is headed by Vanessa Calder, 28, a yoga teacher who learned > the 26-pose Bikram sequence from her parents without getting formal > certification. (Her parents, who own four Yoga Loka studios in > Northern California, received one of Choudhury's cease-and-desist > letters in 2002.) > > Open Source Yoga has about two dozen members, mostly teachers or > students of Bikram and other styles of yoga. Most choose to remain > anonymous because they are afraid that Choudhury may sue them if their > identities are known, said Calder, the group's chief executive. > > In July 2003, Open Source filed a suit in U.S. District Court in San > Francisco, asking the judge to declare that Bikram could not use his > copyrights to stop others from practicing or teaching classes that > used the Bikram sequence of poses. > > At a hearing in January, the attorneys finally stood before Judge > Phyllis Hamilton and argued the main issue in the case: What is the > scope of Choudhury's copyright protection? > > On one side of the courtroom sat Choudhury, self-proclaimed yogi to > the stars, in pinstriped suit, a diamond-studded watch on his wrist, a > pink silk handkerchief peeking out of his breast pocket. On the other > side, dressed in a flowing Indian print skirt, sat Calder, surrounded > by several supportive yoga students and teachers. > > As the lawyers for both sides argued their cases, Hamilton struggled > with Indian names and yogic concepts, and with what exactly was at > stake. "This is a very unusual case," Hamilton began. "I don't even > know what is being sought. Am I pronouncing this correctly? Bikram?" > > "Your honor, we are looking for a judgment that yoga teachers may > teach the sequence described in this book ["Bikram's Beginning Yoga > Class"] without infringing on Mr. Choudhury's copyright," said Open > Source's lead lawyer, Elizabeth Rader, a Palo Alto attorney > specializing in intellectual property cases. "My clients want to be > able to teach the exercise, the method of fitness, described in this > book." > > Representing Choudhury, Palo Alto attorney Susan Hollander — also an > intellectual property specialist — sought to persuade Judge Hamilton > to force the Open Source members to reveal their identities and > explain how they are interpreting the "Bikram's Yoga" sequence so the > court could determine whether that interpretation is "significantly > similar" to Bikram's. > > "To this day we do not know what the members of O.S.Y.U. are doing," > Hollander told the judge. "So we can see if one pose has been altered, > or two…. We want them to tell us." > > "I imagine they were reluctant to say who they are if he [Bikram] only > sues people who are doing that," Hamilton responded. > > Hollander contends that yoga is no different from music or any other > form of expression. > > "There's nothing special about yoga which should make it special or in > some way removed from copyright law," she said. "In my view it is just > a form of expression that has public domain elements to it." > > That view is a stretch to some yoga enthusiasts. "To say that, > basically, a tradition of working with the body can be somebody's > intellectual property — no matter how they put them together — seems > pretty bizarre," said Deborah Willoughby, founding editor of Yoga > International, a magazine that focuses on the spiritual aspects of > yoga. "It's a violation of the spirit of yoga." > > Copyright law does not extend to an idea or process; it only addresses > the way an idea is actually expressed. That means a book, video or > photograph can be copyrighted, but teaching a recipe written in a > cookbook, for example, could not. > > Athletic movements, such as a basketball star's signature slam-dunk, > cannot be copyrighted because sports games are unscripted and have > unanticipated occurrences. > > "I'm not aware of anyone who has successfully done what Bikram is > trying to do," said Netanel, who has discussed the case in his law > classes. "Which is, through the guise of copyrighting photographs or > descriptions of an exercise method, to control the practice of yoga." > > Hamilton is expected to rule on the copyright issue this spring > > Some of Open Source's executive board members studied with Choudhury > but have since struck out on their own, creating new sequences and > styles of yoga — with a definite Bikram influence. They are among the > most outspoken of his critics. > > Ted Grand studied with Choudhury in 1999 and started four Bikram > studios in Canada. Grand built studios with radiant heating panels, > reclaimed hardwood floors from old gyms, and nontoxic paint. "Bikram > was very upset with us for not putting carpet down in the yoga room, > and threatened to sue," he said. > > Rather than fight, Grand came up with his own sequence of about 40 > poses — done in a hot room — and created a small chain of studios. He > called his new style Moksha Yoga. > > Jimmy Barkan, of Fort Lauderdale, Fla., also teaches yoga based on his > experience with Choudhury. He calls his classes "Hot Yoga With Jimmy > Barkan" but has not changed the sign outside his studio, which reads > "Yoga College of India." > > "Bikram brought this style of yoga to this country, and for that I > will be forever grateful," said Barkan, who says a phone call from > Choudhury forbidding him to teach at certain yoga conferences and > vacations prompted him to break away from the franchise. "He is > extremely passionate and charismatic. And when he is on, he is > extremely inspiring." > > Added Barkan: "We just didn't want to be looking over our shoulders > all the time. We want the freedom to be able to do whatever we want. > We did not want policemen to come into the studio and say, 'This is an > illegal class; you are not allowed to do this triangle at this time.' > " > From prashant at nalsartech.org Wed Apr 6 11:44:17 2005 From: prashant at nalsartech.org (Prashant Iyengar) Date: Wed, 6 Apr 2005 11:44:17 +0530 Subject: [Commons-Law] State legislature not competent to enact law on copyright' Message-ID: <200504061144.17585.prashant@nalsartech.org> http://www.thehindu.com/2005/04/06/stories/2005040614720300.htm Tamil Nadu - Madurai `State legislature not competent to enact law on copyright' By Our Staff Reporter MADURAI, APRIL 5. The Madurai Bench of the Madras High Court today witnessed heated arguments on the validity of an amendment made to the Tamil Nadu Prevention of Dangerous Activities Act, incorporating `video pirates' among other offenders. Arguing for a habeas corpus petition against the detention of a person branded as a `video pirate' in Tiruchi, senior counsel, K.M. Vijayan, contended that the State legislature was not competent to enact a law concerning copyrights, since it was an exclusive Central subject. A `video pirate' was defined under the Act as "a person who commits or attempts to commit or abets the commission of offences of infringement of copyright in relation to a cinematograph film or a record embodying any part of sound track associated with the film, punishable under the Copy Right Act, 1957 (Central Act)." Pointing out that the Seventh Schedule of the Constitution distinguished between the subject matter of laws that could be enacted by Parliament and State legislatures, drawing reference to three different lists, Union List, State List and Concurrent List, the senior counsel said copyright fell under Entry 49 of the Union List and hence only Parliament was vested with the right to enact a law on the subject. "For example, income-tax is a Central subject. Can the State enact a law to detain a person for non-payment of income-tax?" Mr. Vijayan questioned. The Preventive Detention Act, amended on December 9 last, was called Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders, Forest Offenders, Slum-grabbers and Video Pirates Act. The Act enables the District Collector or a Commissioner of Police to detain an offender for a maximum period of one year, extended every three months. The senior counsel also wondered how the activities of video pirates could be termed as prejudicial to maintenance of public order. "Public order has been defined by the Supreme Court time and again as breach of public peace and tranquillity. At the most, a few people from the cinema industry could be affected by the activities of a video pirate, but for that the question of disturbing public order does not arise at all." Replying to the contentions raised by the other side, Advocate General, N.R. Chandran, said an identical question of law was decided by the High Court in 1984 with regard to the powers of the State in enacting a law on censor certification for running video libraries. "Originally, there was an argument that there was no entry called `video' (in the Seventh Schedule). But we argued that video will get into cinema." On the other point raised by the counsel for the petitioner, the Advocate General said that video piracy would very much affect public order since the pirates were not only creating copies of latest movies but were also producing and selling pornographic films, which polluted the minds of youngsters and students. "This activity reaches the people in an unpleasant manner and it not only affected the revenue of the State and the cinema industry but also the society at large," he added. © Copyright 2000 - 2005 The Hindu From lawrence at altlawforum.org Wed Apr 6 11:48:10 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Wed, 06 Apr 2005 11:48:10 +0530 Subject: [Commons-Law] Great Article on Public Discourse and Patent Message-ID: Hi all This is a great article written by Ammu Joseph doing a media analysis of the coverage of the Patent Amendment debate Lawrence ------ Public discourse on public health The Patents Amendment Bill involved an issue of great concern to citizens. But did the Indian media provide a public forum for debate on the issue and enable individuals and institutions to contribute their thinking? Ammu Joseph doesn't think the media lived up to its responsibilities. In democratic societies, two of the most influential determinants of national identity are the nature of civil society and the debate which goes on within it. A country's media should provide part of the public sphere, the public forum for that debate to which individual citizens and institutions contribute their thinking on issues of general concern to the community. Their responsibility grows as the media become increasingly significant in the national life." Jocelyn Hay, Founder, Voice of the Listener and Viewer, U.K. 03 April 2005 The following alarming predictions appeared on the front page of The Asian Age (AA) on 23 March 2005, alongside a report on the passage of the Patent (Amendment) Bill 2005 in the Lok Sabha the previous day despite a walkout by the Opposition, chiefly the National Democratic Alliance led by the Bharatiya Janata Party. �E "Price of life-saving drugs to go up by at least 10-20 times. A cancer drug that now costs Rs. 9000-Rs. 12,000 may shoot up to Rs. 1.20 lakhs. �E "Patients suffering from cancer, HIV/AIDS and heart diseases most affected. Anti-retroviral drugs for HIV patients may jump from Rs. 7000 to nearly Rs. 2 lakhs for a one-year course. �E "Cost of drugs for hypertension, stroke, ulcer, depression and osteoporosis is likely to go up to international levels. Prilosec, used to treat ulcers, costs $2.45 in India, as against $105.50 in the US. The Bill will soon raise the Indian price to American levels. On page 3, the daily carried two reports related to the Bill. One, based on a press conference held by national and international voluntary organisations in Delhi, quoted health activists from Asia, Africa and Latin America. They alleged that the Bill threatened to shut down the generic production of new drugs and that, as a result, life-saving medicines would become unaffordable, especially in developing countries. The other report quoted a representative of the international humanitarian organisation, Medecins sans Frontieres (Doctors without Borders) in Mumbai. According to her, "The life and health of hundreds of thousands of people globally depends on decisions taken in India this week." Clearly the Bill involved an issue of great concern to citizens: public health at the very least and, possibly, even the most fundamental of human rights - the right to life. Did the Indian media provide a public forum for debate on the issue and enable individuals and institutions to contribute their thinking on a matter of considerable importance to countless people, not only within the country but across the world? A quick survey of six daily English newspapers published in Bangalore suggests that it did not. In fact, the reports mentioned above were the only ones in the week before the Bill became law that alluded to the fact that the issue had to do with people and their health. The rest treated it as a tug of war between political parties/ideologies, between multinational and domestic pharmaceutical industries, or a combination of the two. Neither the headlines nor the copy provided any clue that the issues under discussion could drastically affect the lives of ordinary citizens. Readers who managed to plough through the jargon and the legalese were unlikely to have got a sense of the possible impact of the proposed law on their access to medicines. Background The Patent (Amendment) Bill 2005, passed by the Lok Sabha on 22 March and the Rajya Sabha the next day was meant to replace the Patents (Amendment) Ordinance, 2004, promulgated on 26 December. It was introduced in the lower house of Parliament by Mr. Kamal Nath, Union Minister for Commerce on 18 March. Interestingly, both the Bill and the Ordinance were based on an earlier draft legislation that had been tabled in Parliament by the NDA government in December 2003, but had lapsed due to the dissolution of the Lok Sabha prior to the 2004 general election. The controversial law, bringing in a third amendment to the Indian Patents Act, 1970, relates to India's obligations under the global agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), adopted in 1994 as one of a package of agreements that member states of the World Trade Organisation (WTO) must adhere to. Under the agreement, developing countries like India were obliged to introduce patent protection for pharmaceutical and agro-chemical products by 1 January 2005. Health and trade activists had been warning for some time that the various drafts of the legislation had not even made proper use of the limited flexibility available within TRIPS, especially in the context of the 2001 Doha Declaration on Public Health. They pointed out that, despite several ambiguities and deficiencies, the latter does state that the agreement should be interpreted and implemented in the light of WTO member countries' right to protect public health and promote access to medicines for all. A Group of Ministers set up in August 2004 by the post-election United Progressive Alliance (UPA) government to examine the implications of the legislation inexplicably decided not to invite comments from civil society on what could be a matter of life and death for countless citizens. In October 2004 the Fourth People's Commission on Review of Legislations Amending Patents Act, 1970, chaired by former Prime Minister I.K. Gujral, and made up of several eminent and knowledgeable members, concluded that the interests of the Indian people must be protected by, at the very least, taking advantage of the leeway available within TRIPS. It also called for "a full-scale national debate" on the issues involved. Media coverage If the government and even political parties did not see fit to generate such a debate, the media could have stepped into the breach and created a platform for a healthy, illuminating discussion on the issues involved. As a first step, they could have tried to ensure that both basic information and the various conflicting points of view on the subject were available to the public in an accessible form. That would, in turn, have enabled citizens to form informed opinions and contribute their ideas on a matter that is bound to affect their lives. Health advocates and lawyers in different parts of the country have been attempting to generate public discourse on the proposed legislation since at least November 2004 - through meetings, rallies, press releases and conferences and even articles specially written for the press. Very little of the information and critiques they have made available found their way into the media in the run-up to the passage of the Bill. The Ordinance, which coincided with the tsunami, was more or less eclipsed by the disaster. But if the final draft of the Bill was preceded by extensive consultations with all stake-holders, as the government claimed in Parliament, those discussions were hardly reflected in the media. A February rally in Delhi against the Patents Ordinance and Bill. (Pic: Lawyers Collective). Indeed, all was quiet on the media front even on Friday, 18 March, the day the Bill was introduced in Parliament, although there were reports on related matters. "Boon for the sick - drug prices to fall" claimed a headline on the front page of the Bangalore Age section of AA, quoting the Additional Commissioner of Commercial Taxes on an expected eight per cent drop in the prices of medicines with the introduction of the Value Added Tax (VAT) system from 1 April. Vijaya Times (VT) had a business story on an overseas acquisition by Glenmark Pharma. The Hindu (H) carried a business page report on a meeting in Delhi where global civil society organisations were attempting to persuade the G-20 group of nations to resist pressures at the next round of talks of the WTO. None of them made even a passing reference to the Patent Bill waiting in the wings. On Saturday, 19 March, only The Hindu had a front page story on the introduction of the Bill in Parliament. The AA placed its story on page 2, VT on page 6, The Times of India (TOI) and The New Indian Express (NIE) on page 9, and Deccan Herald (DH) on page 11 (albeit opposite the editorial page). The following are some of the events and issues featured on the front pages of papers that did not deem the Patents Bill worthy of page 1 -- in addition to the widely covered controversy over the denial of a U.S. visa to Narendra Modi and the proposal to hike fuel prices: the cricket match in Kolkata, Harshad Mehta's shares, tigers in the Sariska National Park, a humorous discussion on condoms in the Rajya Sabha, cheap air fares, the astronomical salaries offered to graduates of the Indian Institute of Management - Bangalore, and the effect of a bird-hit slows on race car driver Narain Karthikeyan's prospects. Headlined "New Patents Bill introduced amid protests," the front page Hindu report mentioned that a majority of members across the political spectrum, including parties supporting the United Progressive Alliance (UPA) government, had objected to the adoption of the ordinance route. Interestingly, the report revealed that Congress benches in the Lok Sabha were practically empty on a day when such an important Bill was being tabled, while unlikely partners ranging from the Left parties and the Samajwadi Party to the BJP and the Shiv Sena were all on the same side, opposing the Bill. The follow-up stories on page 12 went into the technical details of the suggested amendments to the Bill and reported that several amendments proposed by Left parties had been accepted. A summary of interventions in Parliament included the suggestion that life-saving drugs would be out of reach if the Bill went through in its original form. The AA's page 2 report mentioned that the "controversial" legislation had been tabled despite opposition from a range of parties mainly because none of the latter had insisted on voting at the time of the introduction. According to the report, "Had the Left pressed for the division, then the fate of this bill would have been different as the UPA did not have requisite strength in the House at that time." The page 6 news agency report in VT, based on the press conference held by Left parties, was headlined, "Left goes soft on Patents Bill." The same page featured a report on a Rajya Sabha discussion on a law to prevent discrimination against AIDS patients in work places. Despite the fact that people suffering from HIV/AIDS are among those likely to be severely affected if the new Bill was passed, no link was drawn between the two. As a first step, the media could have tried to ensure that both basic information and the various conflicting points of view on the subject were available to the public in an accessible form. �E Death-knell for low cost medicines The wording of the TOI report on page 9 implied that those opposing the legislation were attempting to prevent the government from abiding by its commitment to the WTO. The report also hinted at backstage political negotiations to ensure that the Bill got through. A page 7 report on plans for legislation to protect "AIDS patients" did not make any reference to the Bill that was likely to push up the cost of HIV/AIDS treatment. The NIE, in its single column report at the bottom of page 9, chose to play up the political angle: "Left tones downs stand on Patents Bill." Deccan Herald's page 11 report, headlined "Patent Bill tabled amid fierce opposition," highlighted the fact that "Opposition members said the House did not have the legal competence to pass the Bill which, they claimed, threatened fundamental rights." The only daily that acknowleged the Bill the day after it was introduced was AA, which had a bylined report on the government's compulsions in the matter since the Ordinance would lapse if it was not ratified by Parliament within six months. The other national news dominating front page headlines on Sunday were: Modi, cricket, Karthikeyan, and Value Added Tax. On Monday, DH, VT and NIE had page 4 reports on the Meet the Press programme with Ramvilas Paswan, Union Minister for Steel, Chemicals and Fertilisers, organised by the Mysore Reporters Guild. The headlines highlighted his assurances on drug prices ("90 % drug prices to remain stable," "Task force for drug price control mechanism," "No increase in drug prices" respectively). None of the other papers made even this oblique reference to the Bill. Meanwhile, there was a sports bonanza on page 1 that day (cricket, Karthikeyan and Pankaj Advani's World Billiards Championship). Other national news that made front page headlines were the petrol prices and the Supreme Court's order in the Jharkhand case. Narendra Modi was temporarily displaced. On Tuesday, 22 March, The Hindu had a brief, single column report on Page 1 announcing that the debate on the Patents Bill had been deferred. More reports followed on Page 11, most of them focussing on developments on the political front vis a vis the Bill. A related report revealed that two journals published by the Council of Scientific and Industrial Research (CSIR) figured in the compulsory reference list of the patent treaty of the World Intellectual Property Organisation. The AA placed the news on page 2, VT in the news capsule column on page 6, DH in a single column report in the top right corner of page 7, NIE on page 9 and the TOI on page 13 (Business Times). But Modi was back on the front page. Also covered on page 1 were cricket (but of course; DH even had an edit on "Super Sunday"), Sri Lankan cricketer Muttiah Muralitharan's wedding, President A.P.J. Kalam's comments on dubious means of government formation, Rahul Gandhi's maiden speech in the LS and the United Breweries takeover of Shaw Wallace. On Wednesday, 23 March, all six papers front-paged news of the Bill being passed by the Lok Sabha. In The Hindu it was the lead story. The focus of most reports was on who had won the battle of wits between the various political parties: LS adopts modified Patents Bill - The Left claimed victory after 10 of the 12 changes it suggested were accepted, BJP said the Left flaunts red flag only outside Parliament and waves green flag inside (DH), Patent Bill passed as Left drops objections (AA), LS passes Patents Bill with Left support (TOI), Patents Bill passed with Left touch (VT), Left clears the way for Patents Bill (NIE). Neither the DH box explaining patents, nor the details of the Bill's provisions, including accepted amendments, in VT and NIE cast much light on the significance of the new legislation and/or its possible impact on the lives of ordinary citizens. There was no evidence of any attempt to help readers understand technical terms such as "pre-grant opposition" and "compulsory licensing." Furthermore, the government's assurances about the continued availability of drugs at affordable prices, as well as its capacity to meet domestic health emergencies seemed to be taken at face value. The views of the lawyers and health advocates, including some from overseas, who had been campaigning on the issue were largely ignored by the media. Only AA seems to have bothered to even cover the press conference addressed by health activists from Africa, Asia and Latin America. This is despite the fact that timely media advisories were sent out by activists from the day after the Bill was introduced in the Lok Sabha. These included offers of interviews with Indian and international health advocates, a press conference featuring them, as well as a detailed critique of the Bill released on the day it was passed by the Rajya Sabha. According to activists, even a paid public service advertisement they wanted to place in the Delhi edition of a newspaper was subjected to interference from the daily's legal department, which resulted in a watered down version of the original. A television channel that extensively covered the press conference on 22 March finally broadcast a story which made hardly any reference to the views expressed at the event. What is more, the media did not seem to think it necessary to solicit the opinions of doctors and other health professionals on the issue. The views of the Indian Council for Medical Research and institutions of scientific research were missing from the media. Even the responses of the pharmaceutical industry were barely covered, even on the business pages of the dailies (the only exception was a piece in the NIE on 24 March). Under the circumstances, it is hardly surprising that ordinary citizens had no say at all. In other words, reporting on the issue was largely confined to the limited debate that took place in Parliament and amongst political parties. The first edit on the subject that week appeared in the NIE: "Realism at last: Left shows it can govern in the times of WTO." It suggested that the compromise between the government and the Left to facilitate the passage of the Patents Bill was a laudable example of how legislation ought to be managed. It was appreciative of the Left parties' interventions aimed at improving the Bill and critical of both the bureaucracy (for shoddy drafting) and the BJP (for what it described as evasive tactics). Only The Hindu, AA and VT thought the Rajya Sabha's approval of the Bill the next day worth highlighting on the front page. News that made it to page 1 that day concerned cricket, the sibling rivalry at Reliance Industries, Pervez Musharraf's comments on Kashmir, an oil slick off the Goa coast, and a Telugu film star's attempted suicide. The Hindu also had an edit on the subject on Thursday. Headlined "Two cheers for patents," it provided a detailed, critical analysis of the new legislation. Admitting that the "deficient Bill" had been amended "in good but not complete measure" to achieve "a happy compromise of sorts," the edit concluded that "the government must not treat TRIPS as a closed chapter." Instead, it suggested, "India must effectively and persuasively advocate a much greater relaxation of key Articles relating to public health." Only the NIE carried a special story on the subject that showed any evidence of independent initiative at any point during the week. The prominent piece at the top of page 9 (opposite the editorial page) on Thursday was headlined, "After the Bill, Patent debate continues." However, three quarters of the report was based on comments from domestic pharmaceutical industry sources, while the rest focussed on the response of a single international non-governmental organisation: Oxfam. This then was the sum total of the media's contribution to the debate on the Patent Bill in the critical seven days between its introduction in Parliament and its passage into law. The TOI did carry an edit on the subject on 26 March, dismissing fears of soaring medical bills (at least for a few years) and other such "scare-stories," and proposing instead that the Bill be seen as "an opportunity, not a threat." "Free and independent media are essential to democratic principles and practices," said Arne Wessberg, President of the European Broadcasting Union, in 2003. "Broadcasting open to pluralism of opinion and cultural diversity offers the widest public access to the knowledge, education and information required by an active citizenry." The question is: has the Indian media lived up to its responsibility to ensure that citizens have access to key information and the full range of opinions on the Patent Bill? Are even newspaper readers - let alone the larger public -- today equipped to understand and deal with the implications of the new law (if any) for their own health, if not that of fellow citizens with fewer resources? I know I am not. ��mmu Joseph 03 Apr 2005 From prabhuram at gmail.com Wed Apr 6 13:51:18 2005 From: prabhuram at gmail.com (Ram) Date: Wed, 6 Apr 2005 10:21:18 +0200 Subject: [Commons-Law] Kamal Nath constitutes Technical Expert Group on patent law issues. Message-ID: <68752c9f05040601213c20f54d@mail.gmail.com> >From the Press Information Bureau Shri Kamal Nath, Union Minister for Commerce& Industry, has constituted a Technical Expert Group to study certain patent law issues. The five-member committee headed by Dr. R.A. Mashelkar, Director General, Council of Scientific and Industrial Research (CSIR), New Delhi (Chairman), will comprise the following as members: Prof. Goverdhan Mehta, Director Indian Institute of Science, Bangalore; Prof. Asis Datta, Director, National Centre for Plant Genome Research, New Delhi; Prof. Madhav Menon, National Judicial Academy, Bhopal; and Prof. Moolchand Sharma, Director, National Law Institute University, Bhopal. The Expert Group will have the following terms of reference: (a) whether it would be TRIPs (Trade-Related Intellectual Property Rights) compatible to limit the grant of patents for pharmaceutical substance to new chemical entity or to new medical entity involving one or more inventive steps; and (b) whether it would be TRIPs compatible to exclude micro-organisms from patenting. The setting up of the Committee is a direct follow-up of the assurance given by Shri Kamal Nath while moving the official amendments to the Patents (Amendment) Bill 2005 in the Lok Sabha on March 22 that the issue of patent availability of new chemical entities and micro-organisms would be referred to an Expert Committee and if as a result any amendments were suggested to safeguard the interests of these products, they would be incorporated in the new legislation later. According to the Order dated 5th April, 2005 constituting the Technical Expert Group issued by the Department of Industrial Policy & Promotion (DIPP), Ministry of Commerce & Industry, the Group will submit its report to the DIPP and would be serviced by the Department of Industrial Policy & Promotion. -- Prabhu Ram, Max-Planck-Institut for Intellectual Property, Competition and Tax Law, MarstallPlatz 1, 80539 Munich GERMANY Tel: + 49 89 24246226 Mob: + 49 17629830521 Web: http://infoserve.blogspot.com From vasumank at yahoo.com Thu Apr 7 03:01:48 2005 From: vasumank at yahoo.com (Vasuman Khandelwal) Date: Wed, 6 Apr 2005 14:31:48 -0700 (PDT) Subject: [Commons-Law] Article from The Hindu: Madrid System Message-ID: <20050406213149.83852.qmail@web50903.mail.yahoo.com> thehindu at web1.hinduonnet.com wrote:Date: Thu, 7 Apr 2005 02:59:25 +0530 From: thehindu at web1.hinduonnet.com Subject: Article from The Hindu: Sent to you by vasuman ============================================================= ============================================================= Source: The Hindu (http://www.hinduonnet.com/2005/04/07/stories/2005040704591000.htm) Opinion - Editorials JOINING THE MADRID SYSTEM THE GOVERNMENT HAS indicated that it has decided "in principle" that India should join the Madrid System for international registration of trade marks and service marks. It has taken six years for New Delhi to think of a step that should have logically followed the momentous decision it took in 1998 to join the Paris Convention on the protection of industrial property, which lays down minimum legal standards for intellectual property rights (IPRs). The accession to the convention followed a realisation that the country was irreversibly moving towards the grant of product patents for drugs, foods, and agrochemicals as an obligation under the Trade Related Intellectual Property Rights (TRIPS) agreement of 1994, and that abstention from the convention had lost its rationale. The Government then made the best out of what was widely perceived as a bad bargain, by acceding to a facility that the convention offers to signatories. This is the Patent Cooperation Treaty (PCT), under w! hich nationals and residents of member states can seek patents in more than 120 countries by filing a single application, in a single language, and at low cost, besides accessing a global novelty search. But such benefits have not come the way of Indian nationals and residents in the case of trade marks, although India enacted a new trade mark law in 1999 incorporating Paris Convention norms. The hesitation in joining the Madrid System relating to trade marks probably reflected apprehension that accession would benefit chiefly multinational corporations, which own thousands of trade marks. Such a negative attitude to trade marks is incomprehensible in a country where political parties often fight for the right to use names, flags, and symbols that have become popular with the electorate. Trade marks are as important for manufacturers and consumers as flags and poll symbols are for parties and voters. They should be considered necessary elements of the rule of law. The Madrid System governing trade marks offers a convenient procedural mechanism similar to what the PCT does in the case of patents; it is quite indispensable in the era of globalisation. As in the case of the pat! ent system, decisions on trade mark registration will remain with the national authorities. It should also be remembered that while major legal and policy changes that globalisation brings about are as a rule driven by powerful corporates and developed countries, the systemic changes are simultaneously influenced to an extent by the interests of small and medium scale businesses in the same countries as part of the same process. Not surprisingly, the 77-member Madrid System (or Union as it is often called) has been traditionally taken advantage of by European countries where small and medium businesses are engines of innovation and export. More than 95 per cent of users of the system have each registered up to 10 trade marks. The recent accession of the United States and China has added a new dimension to the Madrid System. Since the system offers scope for putting in an application for international registration in the trade mark office of any country where the applicant has a substantial commercial interest or is domiciled, and not necessarily in the trade mark o! ffice of his own country, failure to join the system encourages Indian businesses to use the trade mark offices of other countries that are members of the system. To counter this trend, India should expedite its accession to the Madrid Union and strengthen its own trade mark registry and professional skills ahead of such accession. --------------------------------- Yahoo! Messenger Show us what our next emoticon should look like. Join the fun. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050406/9c437799/attachment.html From monica at sarai.net Thu Apr 7 07:44:24 2005 From: monica at sarai.net (Monica Narula) Date: Thu, 7 Apr 2005 07:44:24 +0530 Subject: [Commons-Law] Sarai Reader 05: Bare Acts Message-ID: Dear All, We are happy to announce the print and web publication of Sarai Reader 05 : 'Bare Acts' . Please find more details about the book below. We would welcome responses, reviews and critiques of the publication, and discussions based on its contents. If you would like to write a review of the book, and wish to obtain a review copy, do write to publications at sarai.net, mentioning details of the publication where the review will appear, and when it is likely to be published. The contents of the book may also be translated into other languages, and published elsewhere. We, and the authors, would like to be informed. Looking forward to your responses The Editorial Collective, Sarai Reader Series ---------------------------------------------------------------------------------------------------------------- Sarai READER 05: BARE ACTS Editors: Monica Narula, Shuddhabrata Sengupta, Jeebesh Bagchi + Geert Lovink Guest Editor: Lawrence Liang Sarai Reader Series Editorial Collective: Monica Narula, Shuddhabrata Sengupta, Ravi Sundaram, Ravi S. Vasudevan, Awadhendra Sharan, Jeebesh Bagchi + Geert Lovink Published by the Sarai Programme, Centre for the Study of Developing Societies, Delhi, 2005 [cc] Produced and Designed at the Sarai Media Lab, Delhi ISBN 81-901429-5-X 584 pages, 14.5cm X 21cm Paperback: Rs. 350, US$ 20, Euro 20 ------------------------------------------------------------------------------------------------ Bare Acts This year, the Sarai Reader looks at 'Acts' as instruments of legislation, at things within and outside the law, and at 'acts' as different ways of 'doing' things in society and culture. Several texts and image-essays echo and complement themes that have emerged in earlier readers. Piracy, borders, surveillance, claims to authority and entitlement, the language of expertise, the legal regulation of sexual behaviour and trespasses of various kinds have featured prominently in previous Readers. This collection foregrounds these issues in a way that hopes to continue to provoke rigorous engagement and reflection. The 'Bare Act' is an expression used to specify the content of law, bereft of any interpretative gloss. In legal libraries in India and many parts of the English-speaking world, a Bare Act is a document that simply codifies a law without annotation or commentary. The 'Bare Act' is legality pared down to its textual essence. It expresses only what the law does, and what it can do. The enactment of law, however, is less a matter of reading the letter of the law, and more a matter of augmenting or eroding the textual foundation through the acts of interpretation, negotiation, disputation and witnessing. The law and practices within and outside stand in relation to a meta legal domain that can be said to embrace acts and actions in all their depth, intensity and substantive generality. This too is a stage set for the performance of 'bare acts', of what we might call 'naked deeds' - actions shorn of everything other than what is contained in a verb. The 'Bare Act' that encrypts the letter of the law, the wire frame structure that demands the fleshing out of interpretation, and the 'bare act' that expresses and contains the stripped down kernel of an act, of something that is done, are both expressions that face each other in a relationship of tense reflection and intimate alterity. Bare Acts generate bare acts, and vice versa. 'Bare Acts', the fifth Sarai Reader, proposes to be a considered examination of this troubled mirror image. ------------------------------------------------------------------------------------------------ See below for the complete table of contents. The complete text of 'Bare Acts', like the entire contents of previous readers, is available for free browsing and download as pdf files at http://www.sarai.net/journal/reader5.html For Purchase, Distribution and Other Enquiries, mail to - publications at sarai.net or, contact - Publications Sarai, Centre for the Study of Developing Societies 29, Rajpur Road, Delhi 110054, India Tel : (+91) 11 2396 0040 http://www.sarai.net E mail : dak at sarai.net Distributors: Seagull Books, Delhi & Kolkata (in India) and Autonomedia, New York (USA) ---------------------------------------------------------------------------------------------------------------- TABLE OF CONTENTS OF SARAI READER 05 : BARE ACTS PREFACE - vi ARGUMENTS - 1 Invitation - Sarai Reader Editorial Collective - 2 Porous Legalities and Avenues of Participation - Lawrence Liang - 6 "ŠBolti Band (SILENCED)!" - Clifton D' Rozario - 18 Lepers, Witches and Infidels & It's a Bug's Life - Francesca da Rimini - 26 Rested - Colette Mazabrard - 39 DISPUTATIONS - 45 Of Butchers and Policemen: Law, Justice and Economies of Anxiety - Gunalan Nadarajan - 46 Down by Law: A Critique for the 21st Century - Alexander Karschnia - 57 'New' Delhi: Fashioning an Urban Environment through Science and Law - Awadhendra Sharan - 69 Improbablevoices.net: An Improbable Monument to Witnessing and the Ethics of Trespass - Sharon Daniel - 78 TRESPASSES - 95 The Discovery of the Fifth World: Stealth Countries and Logo Nations - Daniel van der Velden, Tina Clausmeyer, Vinca Kruk, Adriaan Mellegers (Meta Haven Project) - 96 Transcoding Sovereignty: Naked Bandit/Here, Not Here/White Sovereign - KR + CF - 111 SMS to Passport - Vishwajyoti Ghosh - 115 The Strange Case of Qays Al Kareem - Tripta Wahi - 123 Marginalia - Kai Friese - 129 On Smugglers, Pirates and Aroma Makers - Ursula Biemann - 145 Sponge Borders - Guido Cimadomo + Pilar Martínez Ponce - 150 Notes on the Disappeared: Towards a Visual Language of Resistance - Chitra Ganesh + Mariam Ghani - 154 Dreams and Disguises, As Usual - Raqs Media Collective - 162 HACKS - 176 Trespasses of the State: Ministering to Theological Dilemmas through the Copyright/Trademark - Naveeda Khan - 178 Harmony or Discord? TRIPS, China, and Overlapping Sovereignties - Shujen Wang - 189 Innovating Piracy: The Bare Act of Stealing, and Shaping the Future - Menso Heus - 202 Is Hacking Illegal? - Yuwei Lin + David Beer - 205 Three Proposals for a Real Democracy: Information-Sharing to a Different Tune - Brian Holmes - 215 Roots Culture: Free Software Vibrations "inna Babylon" - Armin Medosch - 222 ENCROACHMENTS - 241 Touts, Pirates and Ghosts - Solomon Benjamin - 242 Daily Journey - Satyajit Pande - 255 Complicating the City: Media Itineraries - Media Researchers @ Sarai - 258 Begum Samru and the Security Guard - Anand Vivek Taneja - 287 My Driving Master: A Story of Everyday Trespasses - Zainab Bawa - 297 Naye Qanoon (New Laws) - 301 ANNOTATIONS - 305 Vis-à-Visage - I. Helen Jilavu - 306 Cybermohalla Logs/Acts/Texts - CM Labs @ LNJP-DP-NM - 308 NEGOTIATIONS - 323 The Act of Leisure - Iram Ghufran + Taha Mehmood - 325 Surveillance, Performance, Self-Surveillance: Interview with Jill Magid - Geert Lovink - 339 Living Between Laws - Ninad Pandit - 348 Negotiating Territory - Ateya Khorakiwala - 354 RECORDS - 359 Tis Hazari Diaries - Chander Nigam - 360 Bare Acts and Collective Explorations: The MKSS Experience with the Right to Information - Preeti Sampat + Nikhil Dey - 385 TRIALS - 397 Zimbabwe's 'New Clothes': Identity and Power Among Displaced Farm Workers - Amy R. West + Blair Rutherford - 398 Standardised, Packaged, Ready for Consumption - Ravi Agarwal - 412 The Act of Instruction - Jan Ritsema - 420 VIOLATIONS - 427 Womanhood Laid Bare: How Katherine Mayo and Manoda Devi Challenged Indian Public Morality - Alice Albinia - 428 Literature and the Limits of Law: Crime, Guilt and Agency in Premchand's Ghaban - Ulka S. Anjaria - 437 The Honourable Murder: The Trial of Kawas Maneckshaw Nanavati - Aarti Sethi - 444 Judicial Extract - 454 Representing a Woman's Story: Explicit Film and the Efficacy of Censorship in Japan - Hikari Hori - 457 The Queer Case of Section 377 - Siddharth Narrain - 466 ASSAULTS - 471 "For God's Sake, Be Objective!" - Somnath Batabyal - 472 Another 9/11, Another Act of Terror: The 'Embedded Disorder' of the AFSPA - A. Bimol Akoijam - 481 Warporn Warpunk! Autonomous Videopoesis in Wartime - Matteo Pasquinelli - 492 'First, Do No Harm...': Ensuring Humanitarian Military Interventions - Bikram Jeet Batra - 500 War Cake - Linda F. Beekman - 511 DISSENSIONS - 515 The Law of the Mother: Soldiers' Mothers and the Post-Soviet Army - Irina Aristarkhova - 516 Naked Protest and the Politics of Personalism - Isaac Souweine - 526 Analytical World Statistics Wall Chart, 2003 - Louise Kolff - 537 A Comparative Anatomy of Post-Mortem Acts - Smriti Vohra - 540 ALT/OPTION - 551 The Accidental Activist - Fredrik Svensk + Kristoffer Gansing - 552 'Our'chitecture - Jayson Claude - 559 Sex Workers' Manifesto - Durbar Mahila Samanwaya Committee, Kolkata - 564 Bare Wiring - Sophea Lerner - 572 Notes on Contributors - 574 Image and Photo Credits - 581 ---------------------------------------------- -- Monica Narula [Raqs Media Collective] Sarai-CSDS 29 Rajpur Road, Delhi 110 054 www.raqsmediacollective.net www.sarai.net From pedro_paranagua at yahoo.com.br Thu Apr 7 01:26:55 2005 From: pedro_paranagua at yahoo.com.br (Pedro de Paranagua Moniz) Date: Wed, 06 Apr 2005 20:56:55 +0100 Subject: [Commons-Law] WIPO - Brazil continues to lead, and the battle is open Message-ID: <42543F07.5060808@yahoo.com.br> 6/4/2005 http://www.ip-watch.org/weblog/index.php?p=40&res=1024_ff&print=0 WIPO Development Agenda, Developing Countries Submit New Proposals by Carolyn Deere @ 7:15 pm On the eve of high-level meetings next week on development and intellectual property, the fourteen co-sponsors of the proposal for the World Intellectual Property Organisation's new Development Agenda today submitted detailed elaborations of their proposals for incorporating development into WIPO's work. The fourteen so-called Friends of Development asked the WIPO Secretariat to distribute the proposal to all WIPO Member States for consideration at two meetings to be held next week: an April 11-13 Inter-sessional Intergovernmental Meeting on the Development Agenda (IIM) and an April 14-15 Permanent Committee on Cooperation for Development Related to Intellectual Property (PCIPD). In a press release issued today, WIPO highlighted that the meetings next week follow the decision adopted by Member States in the 2004 General Assembly debate "to convene inter-sessional intergovernmental meetings to examine the proposals contained" in the original Development Agenda proposal introduced last fall by Argentina and Brazil (and co-sponsored by an additional twelve developing countries), "as well as additional proposals of member states." Under the rubric of "promoting development and access to knowledge for all", the co-sponsors offered concrete recommendations on four aspects of their original Development Agenda proposal. First, the co-sponsors argued that reform of WIPO's governance structure is a necessary prerequisite for promoting development in its work. They proposed amending the WIPO Convention to make it more consistent with WIPO's mandate as a UN specialised agency, strengthening the role of Member States in guiding WIPO's work, establishing an independent Evaluation and Research Office, and ensuring wider participation by civil society and public interest groups in WIPO discussions and activities. Second, the Friends of Development proposed principles to ensure that development objectives are central to all processes and outcomes of WIPO norm-setting activities, including greater Member State involvement in devising WIPO's work plan, comprehensive assessment of the sustainable development implications of any proposed new laws; deeper consideration of the rights and interests of a broad range of stakeholders with respect to intellectual property; and stronger efforts to ensure that proposed standards support the objectives and provisions of other international instruments (such as the Millennium Development Goals). To ensure these guidelines have practical effect, the co-sponsors recommended independent, evidence-based "Development Impact Assessment" (DIA), the incorporation of provisions to recognise the difference between developed and developing WIPO Member States, and greater public consultation prior to any norm-setting discussion in WIPO. Third, the submission proposed mechanisms to ensure WIPO's technical assistance and capacity building responds to the development goals of developing countries. The co-sponsors argued for the adoption by the 2005 WIPO General Assembly of a commitment to technical assistance programmes that are: development-focused, comprehensive and coherent; neutral, unbiased, non-discriminatory; tailor-made to respond to the expressed and distinct needs of a range of stakeholders. They argued that special attention should be paid to the different levels of development of various countries and fostering "the technical capacity of countries to fully use in-built flexibilities in international agreements to advance national pro-development policies." In order to make "good use of the limited resources allocated to intellectual property technical assistance in WIPO", the Friends of Development recommended concrete measures to implement and monitor adherence to these guidelines, such as measures for improved information-sharing, a code of ethics to assure the independence of technical assistance providers, the development of indicators and benchmarks for evaluation, and greater transparency about the design and implementation of technical assistance programmes. The proposal also called for analysis of options for separating WIPO's technical assistance function from its norm-setting function. Fourth, the submission argued that WIPO should contribute to international discussion of what developed countries can do to facilitate the transfer and dissemination of technology to developing countries and recommended several new initiatives at the multilateral level. In their submission, the Friends of Development emphasised their view that "the development dimension of intellectual property is not the same thing as technical assistance." They affirmed that they attach importance "to the role of intellectual property in the path towards development" and stressed their belief that "WIPO could have a new role...if it incorporates the development dimension into its work". The proposal also responded to the question of where best to locate the Development Agenda discussion in the long-term. The co-sponsors stated that the Development Agenda "cannot be limited to or contained within the work of any specific subsidiary body within WIPO" but must be pursued "in all areas of WIPO's activities, including in the work of all standing committees and other subsidiary bodies". Finally, indicating that more is still to come, the Friends of Development noted that their proposal is not exhaustive and they "reserve the right to make additional contributions to the debate as discussions continue". Sisule Musungu of the South Centre, a key developing country inter-governmental think-tank, today applauded developing countries for their collaborative effort to give practical effect to the Development Agenda and to bolster the work of WIPO. Proactive proposals from developing countries, he argued, help WIPO realise its long-stated goal of making its approach to IP relevant and supportive of development. In addition, he said that the "issues raised in the proposals cover not only the concerns of developing countries but also the interests of key constituencies (such as consumers) in the North." A developing country official highlighted that the new submission should put to rest claims by some developed countries that they "do not understand" the original Development Agenda proposal. The Development Agenda discussion, he said, brings WIPO up-to-date with other international organizations--from the World Bank to the WTO--which have undertaken similarly useful processes of introspection to ensure their actions achieve development-oriented results. The WIPO Secretariat noted today that it had also received submissions from Mexico (on Intellectual Property and Development) and the United States of America (on the Establishment of a Partnership Program in WIPO) related to next week's discussions. Sources in Geneva predict strong reactions and a lively debate among the Secretariat, WIPO Member States, and other stakeholders on these proposals in the coming days. The Friends of Development Group comprises the co-sponsors of the original proposal to establish a WIPO "Development Agenda" (Argentina, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela). The WIPO Secretariat also drew attention today to an International Seminar on Intellectual Property and Development to be held on May 2 and 3, 2005 (co-organized by WIPO with the United Nations Conference on Trade and Development (UNCTAD), World Health Organization (WHO), United Nations Industrial Development Organization (UNIDO) and World Trade Organization (WTO)). According to the Secretariat, this event is open to all interested parties, including the press. ------------------------------------------------------------------------ /This work is licensed under a Creative Commons License . All of the news articles and features on Intellectual Property Watch are also subject to a Creative Commons License which makes them available for widescale, free, non-commercial reproduction and translation./ /Carolyn Deere, the author of this post, may be reached at carolyn at ip-watch.org ./ -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050406/c20c7592/attachment.html From martin.hardie at gmail.com Thu Apr 7 11:37:13 2005 From: martin.hardie at gmail.com (martin hardie) Date: Thu, 7 Apr 2005 08:07:13 +0200 Subject: [Commons-Law] Re: [Reader-list] Sarai Reader 05: Bare Acts In-Reply-To: References: Message-ID: <7ff9538b050406230771c86d5b@mail.gmail.com> Dear Monica and evryone else at Sarai CONGRATULATIONS once again But the URL is: http://www.sarai.net/journal/reader_05.html Martin Hardie On Apr 7, 2005 4:14 AM, Monica Narula wrote: > > Dear All, > > We are happy to announce the print and web > publication of Sarai Reader 05 : 'Bare Acts' . > Please find more details about the book below. > > We would welcome responses, reviews and critiques > of the publication, and discussions based on its > contents. If you would like to write a review of > the book, and wish to obtain a review copy, do > write to publications at sarai.net, mentioning > details of the publication where the review will > appear, and when it is likely to be published. > The contents of the book may also be translated > into other languages, and published elsewhere. > We, and the authors, would like to be informed. > > Looking forward to your responses > > The Editorial Collective, Sarai Reader Series > > ---------------------------------------------------------------------------------------------------------------- > Sarai READER 05: BARE ACTS > > Editors: Monica Narula, Shuddhabrata Sengupta, Jeebesh Bagchi + Geert > Lovink > Guest Editor: Lawrence Liang > > Sarai Reader Series Editorial Collective: Monica > Narula, Shuddhabrata Sengupta, Ravi Sundaram, > Ravi S. Vasudevan, Awadhendra Sharan, Jeebesh > Bagchi + Geert Lovink > > Published by the Sarai Programme, Centre for the Study of Developing > Societies, Delhi, 2005 [cc] > Produced and Designed at the Sarai Media Lab, Delhi > > ISBN 81-901429-5-X > 584 pages, 14.5cm X 21cm > Paperback: Rs. 350, US$ 20, Euro 20 > > > ------------------------------------------------------------------------------------------------ > Bare Acts > > This year, the Sarai Reader looks at 'Acts' as > instruments of legislation, at things within and > outside the law, and at 'acts' as different ways > of 'doing' things in society and culture. Several > texts and image-essays echo and complement themes > that have emerged in earlier readers. Piracy, > borders, surveillance, claims to authority and > entitlement, the language of expertise, the legal > regulation of sexual behaviour and trespasses of > various kinds have featured prominently in > previous Readers. This collection foregrounds > these issues in a way that hopes to continue to > provoke rigorous engagement and reflection. > > The 'Bare Act' is an expression used to specify > the content of law, bereft of any interpretative > gloss. In legal libraries in India and many parts > of the English-speaking world, a Bare Act is a > document that simply codifies a law without > annotation or commentary. The 'Bare Act' is > legality pared down to its textual essence. It > expresses only what the law does, and what it can > do. > > The enactment of law, however, is less a matter > of reading the letter of the law, and more a > matter of augmenting or eroding the textual > foundation through the acts of interpretation, > negotiation, disputation and witnessing. The law > and practices within and outside stand in > relation to a meta legal domain that can be said > to embrace acts and actions in all their depth, > intensity and substantive generality. This too is > a stage set for the performance of 'bare acts', > of what we might call 'naked deeds' - actions > shorn of everything other than what is contained > in a verb. > > The 'Bare Act' that encrypts the letter of the > law, the wire frame structure that demands the > fleshing out of interpretation, and the 'bare > act' that expresses and contains the stripped > down kernel of an act, of something that is done, > are both expressions that face each other in a > relationship of tense reflection and intimate > alterity. Bare Acts generate bare acts, and vice > versa. 'Bare Acts', the fifth Sarai Reader, > proposes to be a considered examination of this > troubled mirror image. > > > ------------------------------------------------------------------------------------------------ > See below for the complete table of contents. The > complete text of 'Bare Acts', like the entire > contents of previous readers, is available for > free browsing and download as pdf files at > http://www.sarai.net/journal/reader5.html > > For Purchase, Distribution and Other Enquiries, mail to - > publications at sarai.net > > or, contact - > Publications > Sarai, Centre for the Study of Developing Societies > 29, Rajpur Road, Delhi 110054, India > Tel : (+91) 11 2396 0040 > http://www.sarai.net > E mail : dak at sarai.net > > Distributors: Seagull Books, Delhi & Kolkata (in > India) and Autonomedia, New York (USA) > > > ---------------------------------------------------------------------------------------------------------------- > TABLE OF CONTENTS OF SARAI READER 05 : BARE ACTS > > PREFACE - vi > > ARGUMENTS - 1 > Invitation - Sarai Reader Editorial Collective - 2 > Porous Legalities and Avenues of Participation - Lawrence Liang - 6 > "ŠBolti Band (SILENCED)!" - Clifton D' Rozario - 18 > Lepers, Witches and Infidels & It's a Bug's Life - Francesca da Rimini - > 26 > Rested - Colette Mazabrard - 39 > > DISPUTATIONS - 45 > Of Butchers and Policemen: Law, Justice and Economies of Anxiety - > Gunalan Nadarajan - 46 > Down by Law: A Critique for the 21st Century - Alexander Karschnia - 57 > 'New' Delhi: Fashioning an Urban Environment through Science and Law - > Awadhendra Sharan - 69 > Improbablevoices.net : An Improbable Monument > to > Witnessing and the Ethics of Trespass - > Sharon Daniel - 78 > > TRESPASSES - 95 > The Discovery of the Fifth World: Stealth Countries and Logo Nations - > Daniel van der Velden, Tina Clausmeyer, Vinca Kruk, Adriaan Mellegers > (Meta Haven Project) - 96 > Transcoding Sovereignty: Naked Bandit/Here, Not > Here/White Sovereign - KR + CF - 111 > SMS to Passport - Vishwajyoti Ghosh - 115 > The Strange Case of Qays Al Kareem - Tripta Wahi - 123 > Marginalia - Kai Friese - 129 > On Smugglers, Pirates and Aroma Makers - Ursula Biemann - 145 > Sponge Borders - Guido Cimadomo + Pilar Martínez Ponce - 150 > Notes on the Disappeared: Towards a Visual Language of Resistance - > Chitra Ganesh + Mariam Ghani - 154 > Dreams and Disguises, As Usual - Raqs Media Collective - 162 > > HACKS - 176 > Trespasses of the State: Ministering to > Theological Dilemmas through the > Copyright/Trademark - Naveeda Khan - 178 > Harmony or Discord? TRIPS, China, and Overlapping > Sovereignties - Shujen Wang - 189 > Innovating Piracy: The Bare Act of Stealing, and > Shaping the Future - Menso Heus - 202 > Is Hacking Illegal? - Yuwei Lin + David Beer - 205 > Three Proposals for a Real Democracy: Information-Sharing to a Different > Tune - > Brian Holmes - 215 > Roots Culture: Free Software Vibrations "inna Babylon" - Armin Medosch - > 222 > > ENCROACHMENTS - 241 > Touts, Pirates and Ghosts - Solomon Benjamin - 242 > Daily Journey - Satyajit Pande - 255 > Complicating the City: Media Itineraries - Media Researchers @ Sarai - 258 > Begum Samru and the Security Guard - Anand Vivek Taneja - 287 > My Driving Master: A Story of Everyday Trespasses - Zainab Bawa - 297 > Naye Qanoon (New Laws) - 301 > > ANNOTATIONS - 305 > Vis-à-Visage - I. Helen Jilavu - 306 > Cybermohalla Logs/Acts/Texts - CM Labs @ LNJP-DP-NM - 308 > > NEGOTIATIONS - 323 > The Act of Leisure - Iram Ghufran + Taha Mehmood - 325 > Surveillance, Performance, Self-Surveillance: Interview with Jill Magid - > Geert Lovink - 339 > Living Between Laws - Ninad Pandit - 348 > Negotiating Territory - Ateya Khorakiwala - 354 > > RECORDS - 359 > Tis Hazari Diaries - Chander Nigam - 360 > Bare Acts and Collective Explorations: The MKSS > Experience with the Right to Information - Preeti > Sampat + Nikhil Dey - 385 > > TRIALS - 397 > Zimbabwe's 'New Clothes': Identity and Power > Among Displaced Farm Workers - Amy R. West + > Blair Rutherford - 398 > Standardised, Packaged, Ready for Consumption - Ravi Agarwal - 412 > The Act of Instruction - Jan Ritsema - 420 > > VIOLATIONS - 427 > Womanhood Laid Bare: How Katherine Mayo and > Manoda Devi Challenged Indian Public Morality - > Alice Albinia - 428 > Literature and the Limits of Law: Crime, Guilt > and Agency in Premchand's Ghaban - > Ulka S. Anjaria - 437 > The Honourable Murder: The Trial of Kawas > Maneckshaw Nanavati - Aarti Sethi - 444 > Judicial Extract - 454 > Representing a Woman's Story: Explicit Film and > the Efficacy of Censorship in Japan - Hikari Hori > - 457 > The Queer Case of Section 377 - Siddharth Narrain - 466 > > ASSAULTS - 471 > "For God's Sake, Be Objective!" - Somnath Batabyal - 472 > Another 9/11, Another Act of Terror: The 'Embedded Disorder' of the AFSPA > - > A. Bimol Akoijam - 481 > Warporn Warpunk! Autonomous Videopoesis in Wartime - Matteo Pasquinelli - > 492 > 'First, Do No Harm...': Ensuring Humanitarian Military Interventions - > Bikram Jeet Batra - 500 > War Cake - Linda F. Beekman - 511 > > DISSENSIONS - 515 > The Law of the Mother: Soldiers' Mothers and the Post-Soviet Army - > Irina Aristarkhova - 516 > Naked Protest and the Politics of Personalism - Isaac Souweine - 526 > Analytical World Statistics Wall Chart, 2003 - Louise Kolff - 537 > A Comparative Anatomy of Post-Mortem Acts - Smriti Vohra - 540 > > ALT/OPTION - 551 > The Accidental Activist - Fredrik Svensk + Kristoffer Gansing - 552 > 'Our'chitecture - Jayson Claude - 559 > Sex Workers' Manifesto - Durbar Mahila Samanwaya Committee, Kolkata - 564 > Bare Wiring - Sophea Lerner - 572 > > Notes on Contributors - 574 > Image and Photo Credits - 581 > ---------------------------------------------- > > -- > Monica Narula [Raqs Media Collective] > Sarai-CSDS > 29 Rajpur Road, Delhi 110 054 > www.raqsmediacollective.net > www.sarai.net > _________________________________________ > reader-list: an open discussion list on media and the city. > Critiques & Collaborations > To subscribe: send an email to reader-list-request at sarai.net with > subscribe in the subject header. > List archive: > -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050407/f693ed52/attachment.html From monica at sarai.net Thu Apr 7 12:16:52 2005 From: monica at sarai.net (Monica Narula) Date: Thu, 7 Apr 2005 12:16:52 +0530 Subject: [Commons-Law] Re: Sarai Reader 05: Bare Acts Message-ID: Dear All This is in continuation of the previous posting announcing the print and web publication of Sarai Reader 05 : Bare Acts. There was an inadvertent error about the URL of the online version of the book on the Sarai website. The correct address is http://www.sarai.net/journal/reader_05.html and not http://www.sarai.net/journal/reader5.html We would like to apologize to anyone who tried following the wrong link to the book best M -- Monica Narula [Raqs Media Collective] Sarai-CSDS 29 Rajpur Road, Delhi 110 054 www.raqsmediacollective.net www.sarai.net From sudhir at circuit.sarai.net Thu Apr 7 16:12:35 2005 From: sudhir at circuit.sarai.net (sudhir at circuit.sarai.net) Date: Thu, 7 Apr 2005 12:42:35 +0200 Subject: [Commons-Law] More on the Development Agenda Message-ID: <2b5da2bcecde7c000f71f8b2eac3a968@sarai.net> Dear Shishir and others I've been following the Development Agenda process with some interest. The policy making process/institutions in Indian Intellectual property are diverse and motivated by contrasting concerns. So here is my take on the development agenda process. First, the Indian representative at recent WIPO discussions on Copyright law have been happy to go with the strategy of delaying all substantive norm setting decisions till the development agenda is responded to. So if this is the official position of the government then they are inclined to support the agenda. Shyamkrishna, a member of this list, was present at some of these meetings and hopefully will add to this. Secondly, having had the opportunity to listen to Dr Mashelkar over many years I'm not in the least bit surprised that he was Chairing the Casablanca sessions. A few reasons follow: ---Dr Mashelkar has always advanced strategies for stronger and more IPR protection - his only argument if at all was that Indians should get on the IP ladder. That is a nationalist argument which has no developmentalist agenda unless one assumes that they are one and the same. ---Moreover Dr Mashelkar has never contributed or participated in an intellectual or critical inquiry into IP law. Let me confine myself to one example. His poor grasp of IP more generally leads him to trumpet the CSIR labs increased patent filings to about 200 a year. Though quantitatively a significant increase, the bluff is called by the MIT Technology Review Patent Scorecards for 2002-4 which conducts a strategic analysis of these IP filings to show that if one assesses commercial viability and filings in active fields of technology the Indian filings have an abysmal record. So patent filings look good for CSIR promos and patent lawyers who charge high fees but is another sink hole into which taxpayer money disappears! ---Indian public life is mired in a regressive preference for personality over policy and principle. It always surprised me that senior advocates of the Supreme Court whose every day practice was representing big business in court, were the celebrities of the human rights circuit the world over. It took me a while to work out their success at speaking different languages to different audiences. When Justice Krishna Iyer - an icon of human rights organizations all over India - was asked by an agitated audience why he chose to accept the BJP government's position at the National Commission to Review the Working of the Constitution expressly set up to rewrite the Constitution, he nonchalantly responded 'Why worry - when I'm there!!'. I sincerely hope that Dr Mashelkar can offer us a better explanation... Today’s announcement that Dr Mashelkar will head the Expert Patent Review Committee set up by the Union Government today adds to the frustration of those of who take an active interest in IP policy and watch rigor mortis setting into the policy making process in India. Best Sudhir From pedro_paranagua at yahoo.com.br Thu Apr 7 17:15:07 2005 From: pedro_paranagua at yahoo.com.br (Pedro de Paranagua Moniz) Date: Thu, 07 Apr 2005 12:45:07 +0100 Subject: [Commons-Law] WIPO - Group of Friends of Development Message-ID: <42551D43.7060608@yahoo.com.br> Fresh news re. the proposal submitted yesterday, led by Brazil. rgds, Pedro Pedro de Paranaguá Moniz Masters of Law (LL.M.) candidate, class of 2004/2005 Queen Mary, University of London **************** PROPOSAL TO ESTABLISH A DEVELOPMENT AGENDA FOR THE WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO): An Elaboration of Issues Raised in Document WO/GA/31/11 Submission by the Group of Friends of Development I. INTRODUCTION: PROMOTING DEVELOPMENT AND ACCESS TO KNOWLEDGE FOR ALL During the 31st Session of the WIPO General Assembly (September 27 to October 5, 2004), the delegations of Argentina, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela co-sponsored a proposal to establish a "Development Agenda" for the World Intellectual Property Organization (tabled as Document WO/GA/31/11). The present submission by the Group of Friends of Development seeks further to elaborate four different sections of document WO/GA/31/11, with a view to incorporating the development dimension into WIPO´s work. The four issues dealt with in this new submission are, namely: WIPO's mandate and governance; norm-setting; technical cooperation; and transfer of technology. This document is intended only as a further contribution to the debate on the establishment of a "development agenda" for WIPO. It is not meant to be exhaustive of all possible initiatives that may be undertaken and issues that may be addressed under that aegis. The Friends of Development reserve the right to make additional contributions to the debate as discussions continue. Future documents may further elaborate the proposals contained in the present submission, or address new issues. 2. The basic concern of the Group of Friends of Development is to ensure that WIPO activities and intellectual property discussions are driven towards development-oriented results. As pointed out by document WO/GA/31/11, several international organizations have recognized that much more needs to be done to reach effective results that meet the challenges of development. Leading this process, the United Nations adopted the Millennium Development Goals, which established a firm commitment by the international community to address the significant problems that affect developing countries and LDCs. The Programme of Action for the Least Developed Countries for the Decade 2001 2010, the Monterey Consensus, the Johannesburg Declaration on Sustainable Development and the Plan of Implementation agreed at the World Summit on Sustainable Development, the Declaration of Principles and the Plan of Action of the first phase of the World Summit on the Information Society, and the Sao Paulo Consensus adopted at UNCTAD XI, have all placed development at the heart of their concerns and actions. This has also been the case in the context of the current Doha round of multilateral trade negotiations of the World Trade Organization (the "Doha Development Agenda"), which was launched at the WTO's 4th Ministerial Conference, in November 2001. 3. The aforementioned examples point to a trend towards adopting development-oriented agendas in international fora, in response to the widespread perception that the international debate must tackle this issue. The proposal to establish a "Development Agenda" for WIPO submits that the Organization's work should reflect this trend, by bringing the development dimension into all its discussions and activities. The basic proposal of the "Development Agenda" is that development should be a central dimension in any negotiation involving IP systems. 4. Experience demonstrates that WIPO has concentrated its efforts in the diffusion of standardized approaches to IP policies that assume, from an uncritical standpoint, that development follows suit as intellectual property rights protection is strengthened. Current worldwide debate questioning the appropriateness of such an approach has not been reflected in WIPO's work. Rather, discussions in WIPO have overlooked the importance of a systematic assessment of the implications of increased and standardized IPR protection in terms of access to and diffusion of science, technology and related knowledge and know-how, especially for LDCs and developing countries. 5. The proposal for the establishment of a "Development Agenda" is also based on the premise that development concerns should be given emphasis in WIPO activities, so that the Organization may comply with its UN mandate. One of the intentions of the "Development Agenda", therefore, is to promote a deeper reflection on the development implications of current and new approaches to different IP policy choices and international norm setting, as well as a more accurate and pervasive discussion on the consequences of their adoption by countries at different stages of social, economic and technological development. It is important to promote a critical examination of the implications for developing countries of the adoption of increased IPR protection, rather than seek to approach this highly controversial issue as if it were governed by absolute truths, solely under the one dimensional perspective of the private rights holders, ignoring the broader public interest. 6. Accordingly, while the "Development Agenda" initiative recognizes that intellectual property is relevant to the process of building technological capacity, it also draws attention to the importance of public interest flexibilities provided for by the IP system itself and the role these flexibilities might play in fostering development-oriented policies. Although a globalized economy poses overwhelming challenges for policy-making, such as the tendency towards uniformity, it is important to bear in mind the serious disparities that continue to exist in the levels of human, economic and technological development among different States. States at differing levels of development face different challenges and have different needs. This fact should always be borne in mind in the realm of intellectual property policy-making. 7. From such a perspective, as pointed out in document WO/GA/31/11, intellectual property should be regarded not as an end in itself, but as a means for promoting the public interest, innovation, and access to science, technology and the promotion of diverse national creative industries - in order to ensure material progress and welfare in the long run. Promotion of intellectual property protection alone is not sufficient if unaccompanied by policies that respond to the specific development needs of each country. 8. As WIPO holds an important position in the field of IP issues, the Organization is expected to be guided, in all its activities, by this wider perspective in which IPRs are regarded as instruments that could facilitate social and economic gains for all countries, provided that different national circumstances are properly taken into account. 9. It is incumbent upon WIPO, therefore, to effectively incorporate development promotion as one of its main goals, as already foreseen by the UN-WIPO Agreement. This brings to the forefront, inter alia, the importance of: weighing the costs and benefits generated by IPR protection; safeguarding public interest flexibilities in both ongoing and future negotiations taking place in the Organization; addressing the issue of technical cooperation from a broader perspective – in which countries are helped to frame IP legislation that responds to their specific needs; guaranteeing wider transparency and participation in the discussions; and ensuring that the IP system effectively fosters innovation and technological development. The balance between the public interest and those of rights holders, as well as the balance between the interests of the scientific community and those of the technology and IP based industries should be struck not only in developed countries but also within the specific contexts and conditions of each developing country that is a member of WIPO. This is why IP agreements and minimum international standards should be fine-tuned to address different levels of development of member countries, their respective social needs and industrial challenges as well as their capacity to participate in and benefit from the IP system through generation of patents and IPs resulting from the efforts of their own national communities and industries. These concerns are of a cross-cutting nature, since they relate to all WIPO activities. This highlights the importance of dealing with them in all WIPO fora. 10. The Friends of Development attach importance to the role of intellectual property in the path towards development. In order to ensure the credibility of the IP system, however, more has to be done in order to ensure that peoples all over the world have access to knowledge and technological development. We believe WIPO could have a new role as a relevant actor in this context if it incorporates the development dimension into its work. II. ELEMENTS FOR THE REVIEW OF THE MANDATE AND GOVERNANCE OF WIPO 11. Document WO/GA/31/11 noted that WIPO as a member of the United Nations (U.N.) family should be guided by the development goals that the U.N has set for itself, such as the Millennium Development Goals (MDGs), and that development concerns should be fully incorporated into all WIPO programmes and activities. In the proposal, the co-sponsors further pointed out that WIPO's role is not to be limited to the promotion of intellectual property protection. 12. The proposal that WIPO should be guided by the broader goals of the UN system is a response to and reflects recent developments in many different international fora, where it has been recognized that intellectual property protection has serious cross-cutting implications for several different areas of public policy, including education, public health, nutrition, the environment, cultural diversity and the promotion of science and technological development more generally. In this regard, the adoption of the Doha Declaration on the TRIPS Agreement and Public Health at the 4th Ministerial Conference of the World Trade Organization (WTO) represented a crucial milestone, whereupon the international community recognized that TRIPS, as an international instrument for the protection of intellectual property, should always operate in a manner supportive of the public health objectives of all countries. Relevant developments have taken place in other international fora as well. For example, the "Sao Paulo Consensus", adopted by UNCTAD XI, enshrined the concept of "policy space" in the context of economic policy-making, underscoring its relevance to the pursuit of the development objectives of developing countries and LDCs. 13. Now more than ever before, it has become clear that in the increasingly global, knowledge economy, access to knowledge and technology is indispensable for social and economic development and for the well-being of peoples in all countries. Consequently, any policies and international norm-setting, particularly in relation to intellectual property protection, which may have an impact on access to knowledge and technological development, pose a serious development concern for developing countries and LDCs. II.1. WIPO'S U.N. MANDATE: ADDRESSING POSSIBLE IMPEDIMENTS TO ITS EFFECTIVE IMPLEMENTATION 14. Given the cross-cutting implications of intellectual property protection, in particular for developing countries and LDCs, as well as consumers of new knowledge and technology in both the North and the South, discussions on intellectual property should not and cannot be pursued in a vacuum. In effect, because IP protection has an impact on different areas of public policy of such vital importance to social and cultural development, immediate steps should be taken to ensure the full implementation and monitoring of WIPO's U.N. mandate, by clarifying the mandate of the Organization and by strengthening its Member-based governance structures. It is important to examine and address, in particular, WIPO's development mandate as a U.N. agency, as well as specific practical measures that need to be taken, in terms of governance, to ensure that the development dimension becomes an integral element of WIPO's work programme in all areas of activity. 15. WIPO was established by the 1967 WIPO Convention as an independent international organisation succeeding the Bureaux Internationaux reunis pour la protection de la propriete intellectuelle (BIRPI) to "promote the protection of intellectual property" and "ensure administrative cooperation among the Unions". This objective was, however, explicitly clarified by the 1974 Agreement between the United Nations and WIPO, which established WIPO as a specialized agency of the U.N. family with the responsibility for: [T]aking appropriate action in accordance with its basic instruments, treaties and agreements administered by it, inter alia, for promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development, subject to the competence and responsibilities of the United Nations and its organs,… 16. While intellectual property protection may in particular circumstances promote creativity and innovation, it is neither the only way nor necessarily the most efficient or appropriate means for doing so at all times and in all sectors of the economy. Similarly, it is highly questionable that upward harmonization of intellectual property laws, leading to more stringent standards of protection in all countries, irrespective of their levels of development, should be pursued as an end in itself. WIPO must, as a matter of course, examine and address all features of existing intellectual property rights, including the economic and social costs that IP protection may impose on developing and least developed countries, as well as on consumers of knowledge and technology in both the North and the South. WIPO, moreover, must be open to, and actively consider, alternative non-intellectual property-type systems for fostering creativity, innovation and the transfer of technology, while recognizing the benefits and costs of each system. Higher standards of protection should be undertaken only when it is clearly necessary and appropriate for the promotion of creativity and the transfer of technology, and where the benefits outweigh the costs of protection. Indeed, paragraph 2 of the Preamble to the WIPO Convention, as formulated in 1967, recognized that intellectual property is not an end in itself but should only be used if it promotes creativity. As a matter of fact, given the cross-cutting implications of IP protection, as pointed out above, any attempts to pursue upward harmonization of intellectual property protection, without proper consideration of the potential costs of such initiatives for developing countries and LDCs, as well as for consumers and the public at large, would be at odds with WIPO's U.N. mandate. 17. Furthermore, WIPO should undertake its activities, especially legal-technical and technical assistance with a development focus, based on the 1995 Agreement between WIPO and the World Trade Organization (WTO) with respect to the implementation of the TRIPS Agreement. Under Article 4 of that Agreement, the International Bureau of WIPO and the WTO Secretariat are required to cooperate in matters of legal-technical and technical assistance "so as to maximize the usefulness of those activities". In the context of TRIPS, legal-technical and technical assistance activities have to ensure that the developing and least developed countries are able to implement the pro-development provisions of the TRIPS Agreement, for example, Articles 7, 8, 30, 31 and 40, in addition to subsequent pro-development decisions, such as the Doha Declaration on the TRIPS Agreement and Public Health. 18. In spite of the terms of the 1974 Agreement between the U.N. and WIPO, ambiguities and misunderstandings regarding WIPO's mandate have, for various reasons, persisted over the years. The 1967 WIPO Convention has often been invoked by some to justify attempts to launch negotiations on the upward harmonization of intellectual property laws without a proper, comprehensive and fair consideration of the potential implications and costs of such initiatives for developing countries and LDCs. At other times, some have suggested that the WIPO Convention prohibits the Organization from examining issues such as the control of anticompetitive practices, transfer of technology, limitations and exceptions to intellectual property rights and the protection and enhancement of the public domain. All such restrictive interpretations of WIPO's mandate would seem to run counter to WIPO's role and mandate as a U.N. agency. In effect, given the clear cross-cutting implications of IP for vital areas of public policy, in particular for developing countries and LDCs, such narrow interpretations of WIPO's mandate and mission are not desirable. 19. Several factors may have impeded effective implementation of the Organization's development mandate in the past. Frequently, there has appeared to be a misconception that the development dimension of intellectual property is the same thing as technical assistance and that technical assistance should be provided as a means for enhancing enforcement measures in receiving countries. At other times, the Organization may have lacked clear guidelines from the Member States on how development should be placed at the core of WIPO programmes and activities. This should be remedied by a debate on the subject in the next meeting concerning the Development Agenda. It would be particularly important to mainstream the development dimension into all of WIPO's substantive and technical assistance activities and debates, including the way in which the Organization deals with "enforcement" issues. The objective would be to safeguard in all negotiations the development oriented principles and flexibilities contained in existing Agreements, such as Article 1 of TRIPS, which gives members the freedom to "determine the appropriate method of implementing the provisions of this [the] Agreement within their own legal system and practices", as well as Article 41.5 which establishes in regards of enforcement that nothing creates "any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general". In that light, it is also important to maintain the mandate of WIPO's Advisory Committee on Enforcement within the limits of a forum for exchange of information. II.1 (a) Bringing the WIPO Convention in Line with the Organization's U.N. Mandate 20. As pointed out in Document WO/GA/31/11, one could make WIPO's mandate clearer by means of an amendment to the 1967 WIPO Agreement that would unequivocally inscribe the "development dimension" as an essential element of the Organization's work program. One option is to amend the Convention as indicated in the Appendix to document WO/GA/31/11. The timing and convenience of initiating such negotiations should be properly considered by by all Member States in the IIM on the Development Agenda. II.1(b) The Misconception that the Development Dimension Means Technical Assistance 21. The proposal on a Development Agenda for WIPO is broad and horizontal in nature and strives to address WIPO's work in all its dimensions. In particular, it is critical to clarify that the development dimension of intellectual property is NOT the same thing as technical assistance. While technical assistance has a role to play in ensuring that the implementation of intellectual property rules is development-sensitive, the development dimension in intellectual property means that, inter alia: (a) With respect to norm-setting relating to intellectual property, new subjects and areas for such norm-setting should be identified based on clearly defined principles and guidelines and on an assessment of their development impact. Differing levels of technological, economic and social development should be recognized, and flexibilities and "policy space" for the pursuit of public policy goals should be safeguarded. (b) WIPO should be open to examining non-intellectual property-type and/or non-exclusionary systems for fostering creativity, innovation and the transfer of technology, for example, open collaborative models for research, open and free software development, and compensatory liability systems and the development of technology for the public good, while recognizing the benefits and costs of each system. (c) Specific measures should be undertaken to facilitate the transfer of technology to developing countries and the contribution of such technology transfer to their economic, social and cultural development should be continuously measured, monitored and evaluated. (d) Technical assistance should be demand-driven in the sense that it corresponds to the needs and global political objectives of developing and least developed countries, taking also into account the legitimate interests of various stakeholders and not only those of rightholders. Furthermore, the design, delivery and evaluation of technical assistance should be based on clear principles and there should be open and transparent guidelines relating to (1) the separation of the rule-making and technical assistance functions of the WIPO Secretariat, (2) transparency in technical assistance programmes, to be ensured by, for example, making publicly available the roster of consultants, publishing the exact amounts spent on technical assistance in specific countries and on specific activities, and establishing a code of conduct for the Secretariat staff and consultants, and (3) the use of development indicators to assess the results of technical assistance. 22. Due to the cross-cutting nature of the issues relating to the development dimension of intellectual property, the Development Agenda should be pursued in all areas of WIPO's activities, including in the work of all standing committees and other subsidiary bodies. The proposal for a Development Agenda, due to its broad and horizontal nature, cannot be limited to or contained within the work of any specific subsidiary body within WIPO. All WIPO bodies are expected to contribute to the realization of the development dimension. In this regard, it is important to reiterate that while the Permanent Committee on Cooperation for Development Related to Intellectual Property (PCIPD) may be tasked by the General Assembly with some activities, it cannot be the forum for addressing the proposals contained in document WO/GA/31/11. II.1(c) Guidelines on Incorporating the Development Dimension into WIPO Programmes and Activities 23. As already noted, one of the possible impediments to ensuring the full implementation of WIPO's development mandate may have been lack of clear guidance from the Member States on how development should be placed at the core of WIPO programmes and activities. It is therefore important that Member States develop clear principles and guidelines on the basis of which the development dimension of the Organization's work can be measured. In this regard, this submission proposes specific guidelines and principles with respect to norm-setting, technical assistance and technology transfer. II.2 STRENGTHENING THE ROLE OF MEMBER-DRIVEN STRUCTURES TO ENSURE THE EFFECTIVE IMPLEMENTATION OF WIPO'S DEVELOPMENT MANDATE 24. The governance and oversight structures of the Organization need to be adequate and properly balanced to ensure the implementation of the mandate, and in particular, that the Organization, and consequently the Secretariat, performs its functions properly. The current governance and oversight structures of WIPO need to be examined and recommendations could be made on how to improve them. 25. As an international multilateral organization, WIPO should operate in a member-driven manner. The Secretariat is guided by the instructions of the General Assembly regarding both the internal and external affairs of the Organization. Each Member State bears a special responsibility to ensure this. For example, formal and informal meetings or consultations held between Members or organized by the International Bureau upon request of the Member States should be held in Geneva, in an open and transparent manner that involves all interested Members States. 26. Some concerns and misunderstandings have been expressed, in the past, with regard to WIPO's nature as an institution, due to its funding structure. The activities of WIPO and the International Bureau are financed by income from four main sources, namely, contributions by Member States, fees paid by private sector users of WIPO's global protection systems (PCT, Madrid, Hague and Lisbon Systems), the sale of WIPO's publications and from interest earnings. In 2002, for example, approximately 86 percent of WIPO's total funding came from fees. This situation has led some actors to argue that WIPO should be more responsive to the interests of the rightholders that use the global protection systems and their associations, since the Organization appears to have become "dependent" on them for financing. This line of reasoning is not compatible with WIPO's intergovernmental nature. Additionally, it is not conducive to a development sensitive Organization that should cater to a multistakeholder constituency of all members countries. 27. In fact, WIPO's existence is not dependent on rightholders, and rightholders do not "fund" WIPO. WIPO as an international intergovernmental organization is answerable to its Member States and its existence depends on its Members only. The global protection systems which contribute significantly to WIPO's income are systems that have been created by Member States. Rightholders must not loose sight of the central role played by Member States in the establishment of these services. Consequently, as much as the International Bureau should strive to provide efficient services as mandated by Members, payment for those services by rightholders should in no way provide a basis for anyone to claim that the users of those protection systems have the right to determine the agenda or priorities of the Organization, or even the manner in which the incomes of the Organization are to be allocated under its Programme and Budget. WIPO must remain a Member-driven Organization, where the role of the Secretariat is focused on facilitating the work of the Members and implementing decisions and instructions received from Member States. II.2 (a) Establishing an Independent Evaluation and Research Office 28. In order to strengthen the oversight function of Members, as well as the quality and cost-effectiveness of the Organization's modus-operandi one should consider establishing an independent evaluation and research office called the WIPO Evaluation and Research Office (WERO), which would report to the General Assembly. The Head of the Office would be vetted and approved by the General Assembly and appointed for a fixed term after which time such a person may not be employed in the WIPO Secretariat. Similar conditions may also apply to the staff of WERO. The Office would have unrestricted access to all WIPO documents and the results of the its research and recommendations would be fed back into the on-going and subsequent WIPO programmes and activities, including with respect to norm-setting. 29. Such an Office would provide a transparent, independent and objective mechanism, vis-à-vis the General Assembly, the WIPO Secretariat and all interested stakeholders, through which WIPO's programmes and activities would be evaluated with respect to their development impact in general, and their impact on innovation, creativity and access to, and dissemination of knowledge and technology. Its creation would not only have the effect of enhancing the credibility of WIPO and its programmes but would also be in line with established international practice. The World Bank Group, the International Monetary Fund (IMF), the European Investment Bank, the United Nations Development Programme (UNDP), among other international institutions, already have similar mechanisms. 30. WERO should provide enhanced coordination both inside and outside of WIPO as well as be mandated to present annual reports of its work, research and findings to the General Assembly. Its functions could include: evaluation of all WIPO programmes and activities with respect to their development impact in general and their impact on innovation, creativity and access to and dissemination of knowledge and technology; carrying out "Development Impact Assessments" with respect to proposed norm-setting activities in WIPO, as well as impact assessments and research on existing WIPO administered treaties; avoidance of duplication of costs and actions; the promotion of greater cost-efficiency; monitoring and evaluating the design, delivery and implementation of WIPO legal-technical and technical assistance activities based on the principles and guidelines established by the General Assembly and taking into account best practices from other providers of technical assistance; and monitoring and evaluating WIPO's policies and processes more generally. The foregoing list is meant to be merely indicative. It is clear that the possible role and functions of such an independent evaluation unit would have to be carefully examined and discussed by Member States. The idea of establishing WERO should be examined in detail during the next session of the General Assembly, in September of 2005. II.3 TRANSPARENCY AND INCLUSION: FACILITATING THE PARTICIPATION OF PUBLIC INTEREST GROUPS IN WIPO PROCESSES. 31. Intellectual property law and policy as well as other regulatory regimes relating to innovation and transfer of technology have implications beyond the regulation of monopoly rights over inventions, copyrights, trademarks and other related subject matter. They impact on a much wider range of issues from access to education and learning materials to the availability and affordability of essential medicines as well on the efforts to bridge the digital divide and the technological gap. When rules and standards touch upon such fundamental issues, they cannot be formulated in accordance only with the expertise and concerns of specialized IP lawyers and rightholders groups. 32. Openness of WIPO discussions and decisions and the participation of public interest groups in discussions on an equal footing with rightholders' associations must be sought. WIPO must take into account in all its key policy and technical committees the interests of the consumers, the public at large and those of rightholders. In this context, among other issues, the role and relevance of the Policy Advisory Commission (PAC) and the Industry Advisory Commission (IAC) should merit re-evaluation. 33. The PAC and the IAC were established in 1998. According to the memorandum of the Director General to 40th series of the Assemblies of the Member States of WIPO in September/October 2004, the mandate of the PAC is to "provide objective and informed external advice to the Director General, particularly with respect to policy-making, medium-term planning, processes and the needs of the market sector". The IAC, on the other hand, was established for the purposes of ensuring that the "voice of the market sector is heard and that the Organization is responsive to its [market sector] needs" and ensure that there is "a direct input of industry into the policy-making process in WIPO". 34. While the role of the PAC and the IAC are purely advisory, the emphasis on the role of industry and the "market sector" has raised concerns among other stakeholders about the preponderant participation of industry vis-à-vis public interest groups in WIPO. It is important to ensure that these advisory bodies whose membership is not determined or vetted by Members States do not unduly influence the manner in which the Organisation determines its priorities or implements Member's decisions. II.4 OPERATIVE SUMMARY 35. To streamline the development dimension in WIPO's work programme and ensure that WIPO's governance structures effectively promote the application of the development dimension in all activities of the Organization, it is proposed that: * Members States could consider the possibility of amending the WIPO Convention (1967) to bring it in line with WIPO's mandate as a UN specialized agency; * Principles and guidelines should be formulated to govern WIPO's operation, in all programme areas and activities; * WIPO should operate as a Member-driven institution, where the role of the Secretariat is limited to facilitating the work of the Members and to implementing decisions and instructions received from Members; * A WIPO Evaluation and Research Office (WERO) could be established, which would operate independently of the WIPO Secretariat; * Measures should be taken to ensure wider participation by civil society and public interest groups in WIPO discussions and activities; * Measures should be taken to ensure that the Membership and functions of the Policy Advisory Commission (PAC) and the Industry Advisory Commission (IAC) are determined by the Member States. III. PROMOTING PRO-DEVELOPMENT NORM-SETTING IN WIPO 36. Rapidly growing international intellectual property standards have been placing unprecedented limits on the ability of developing countries to tailor their intellectual property regimes to meet their economic, social, and cultural needs, and have also imposed significant implementation burdens. Challenges faced by Developing Countries in "enforcement" of higher minimum international standards of protection favouring right holders must be balanced by effective use and promotion of flexibilities contained in the IP system, such as those of Articles 1.1 and 41.5 of the TRIPS Agreement, which explicitly recognizes that theses countries have retained the freedom to determine the appropriate form of implementation of their obligations in the area of intellectual property. 37. These standards have been designed and expanded with little consideration for their actual costs and benefits to developing countries. Norm-setting at the international level has been dominated by a paradigm that regards intellectual property rights as the only and unequivocally beneficial instrument to promote creative intellectual activity. Increased scope and levels for intellectual property protection thus often become ends in themselves in international negotiations, which have failed to take into account the need to promote and enhance access to knowledge and the results of innovation. 38. WIPO, as one of the principal international institutions responsible for negotiating standards and norms to promote creative intellectual activity and to facilitate transfer of technology, has a significant role to play in ensuring that intellectual property rules advance development objectives and bears a special responsibility in overcoming current limitations in international norm-setting. Until now, norm-setting in WIPO has focused on encouraging international agreements solely designed to promote the protection of intellectual property. Attempts by the International Bureau to launch initiatives such as the WIPO Patent Agenda, as well as its active engagement in support of treaties currently under negotiations, which do not respond to development objectives or priorities of developing countries and are not concerned with their access to the socio-economic and cultural benefits of innovation and creativity, are cases in point. To rectify this situation, WIPO should pursue a more balanced and comprehensive approach to norm-setting, emphasizing the design and negotiation of rules and standards that are guided by and fully address the development objectives and concerns of developing and least developed countries and of the international community. 39. Discussion on the Establishment of a Development Agenda for WIPO in the 2004 WIPO General Assembly reflected broad agreement among WIPO Member States on the need to enhance and mainstream the development dimension in WIPO activities, including norm-setting. The challenge, as pointed out by some Member States, is now determining how norm-setting and other activities within WIPO can effectively incorporate development objectives and concerns. This section of the present submission therefore identifies and elaborates on a number of principles and guidelines that, applied to the various substantive norm-setting activities in WIPO, would foster an inclusive and pro-development approach to negotiations. The submission also proposes several mechanisms for implementing these principles and guidelines in WIPO in the context of the Establishment of a Development Agenda for the Organization. III.1 PRINCIPLES AND GUIDELINES FOR NORM-SETTING IN WIPO 40. Elaborating rules that effectively promote development and creative intellectual activity requires an adequate framework for negotiations and other WIPO norm-setting activities. Identifying interests behind norm-setting initiatives, assessing the costs and benefits of those initiatives in terms of sustainable development, promoting a balance between protection and dissemination of knowledge and the interests of developed and developing countries, fostering the participation of a broad range of stakeholders, and supporting the compatibility with broader international objectives and commitments constitute, in this regard, concrete and significant steps that can be taken in the context of WIPO norm-setting activities to ensure their outcome reflects development needs and concerns. 41. We should reassess the norm-setting process at WIPO with a view to guaranteeing that the development dimension is part of that process. As a result, a number of principles and guidelines should apply broadly to all WIPO norm-setting activities, including initiatives to implement or modify current international intellectual property standards and to develop new treaties. Such guidelines and procedures have also been agreed to, for example, in the context of the World Trade Organization (WTO) to determine the objectives, scope, and modalities of some negotiations in that Organization. In this regard, possible guidelines and procedures to direct norm-setting activities in WIPO should include: III.1 (a) Member-driven and Transparent Work Plan and Strategic vision, as well as Individual Initiatives 42. One of the obstacles for norm-setting initiatives in WIPO to adequately respond to development objectives and concerns is the lack of information about the short and long-term objectives of these initiatives, as well as about their impact and the consequences of various possible outcomes. The WIPO Secretariat has often played an active role in norm-setting processes and in general there has not been an adequate debate on the feasibility and desirability of new, expanded, or modified rules. The points of view of developing and least developed countries have been ignored in general and negotiations have been launched without real consensus. 43. To ensure that the concerns of all WIPO Member States and relevant stakeholders are appropriately addressed in norm-setting, the WIPO Secretariat should not play a substantive negotiating role by endorsing or supporting particular proposals for the implementation or development of intellectual property rules or standards. On the contrary, the right and burden should be on Member States to propose initiatives and priorities for the work plan of WIPO and its different bodies, as well as to provide a clear indication of the actual need for, as well as the costs and benefits of the proposed norms, to enhance a balanced and informed debate, as proposed below. III.1(b) Comprehensive Assessment and Justification in Terms of Sustainable Development 44. Intellectual property protection is not an end in itself, but rather a means to support public policy objectives such as economic, social, and cultural well-being. Any development, implementation or modification of international intellectual property rules should be based on and respond to sustainable development needs and concerns. All norm-setting activities in WIPO should be based on available empirical evidence and on a cost-benefit analysis. Given that intellectual property protection will generate different costs in different circumstances, from implementation burdens to potential loss of public policy space - from the economic, social, cultural, and environmental perspectives -, its necessity and desirability vis-a-vis other non-intellectual property-type and/or non-exclusionary options should be thoroughly analyzed on a case-by-case basis. 45. Alternatives within and outside the intellectual property system that would reach similar objectives with less monopoly of knowledge should be particularly considered. For instance, the potential of open access models for the promotion of innovation and creativity should be explored as a feasible and desirable option in many contexts. Given that the granting of exclusive rights frequently entail considerable costs, particularly in terms of access to knowledge and essential goods of crucial importance to social and economic development, any initiative involving the creation of new or expanded intellectual property rights should only be adopted if proven to be superior, in social and economic terms, to solutions based on the creation of public goods. Indeed, recognizing that current international intellectual property rules have emphasized the protection of rights vis-a-vis the public domain, WIPO should now actively seek ways to safeguard and promote the public domain and the innovative and creative activities that depend on it. 46. As stated by the Commission on Intellectual Property Rights established by the government of the United Kingdom, the questions to be answered for each proposed norm-setting initiative include: How much intellectual property protection is a good thing? How should it be structured? Serious answers tot these questions shall be found to promote compatibility between sustainable development and norm-setting activities. III.1(c) Recognition of Different Levels of Technological, Economic and Social Development 47. Another key issue to consider in norm-setting is the need to balance the benefits and costs of any initiative between developed and developing countries and, more generally, between the consumers and producers/owners of proprietary technological knowledge. The design and effectiveness of intellectual property as a tool for development has proven to be directly related to prevailing socio-economic circumstances, as becomes obvious when one considers the historical record and the evolution of national intellectual property regimes, particularly in the developed countries. As a result, the different levels of development of Member States should be an inherent consideration in WIPO norm-setting. Only an unambiguous recognition of the need to gauge intellectual property rules according to differing development needs and concerns, and thus of the need for a more equitable distribution of the costs and gains of intellectual property protection, can validate norm-setting activities in WIPO as being balanced and inclusive of all its Member States. 48. Such an approach should be reflected in operative and substantial special and differential treatment provisions for developing countries and least developed countries. Moreover, a pro-development approach to norm-setting should recognize sustainable development as its raison d'etre: all international norms on intellectual property –not just a few provisions in each instrument– should be designed to contribute to the economic, social, and environmental welfare, especially of developing and least developed countries, and to stimulate relevant innovation, research, and technology, and promote access to knowledge. III.1(d) Recognition of the Rights of Different Stakeholder Groups and the General Public as users of the Intellectual Property System 49. As the development dimension requires norm-setting in WIPO to fully consider and take into account the needs and concerns of developing and least developed countries, it also commands the recognition of the rights of a wide range of stakeholders, all of which constitute the true "users" of the intellectual property system. It is not only the interests of owners of intellectual property that should be contemplated and respected, but also those of society at large, as well as the particularly vulnerable segments of the population. As noted by Member States in the 2004 WIPO General Assembly, intellectual property should strike a better balance between private rights and the public interest. Nevertheless, in many norm-setting initiatives in WIPO, it is solely the interests of those that seek new or increased intellectual property rights that are considered. 50. In discussions currently taking place in the Standing Committee on Copyright and Related Rights (SCCR), for instance, little consideration has been given to the rights of performers, authors, educators, students, consumers, and others who would be directly impacted by the proposed new rules. Similarly, when future work in the area of patent law harmonization was discussed during the Tenth Session of the Standing Committee on the Law of Patents (SCP), only the approach of patent holders was brought to the attention of Member States. A pro-development approach to norm-setting in WIPO requires moving away from such a narrow perception of the constituencies whose interests are at stake in respect of intellectual property-related issues and fostering the consideration of the rights and interests of a broad range of stakeholders, as well as promoting their active and effective participation in WIPO's work. III.1(e) Compatibility with, and Support of the Objectives and Provisions of other International Instruments 51. In order to fully incorporate the development dimension, norm-setting in WIPO should not merely consider sustainable development objectives in its processes and outcomes, but also ensure that these processes and outcomes are fully compatible and actively support other international instruments that reflect and advance those development objectives. It is not only a matter of ensuring coherence; it is also one of recognizing the purpose and inherent limitations of intellectual property as an instrument of public policy and the fact that IP protection cannot be seen as an objective or a value in itself. As a result, for instance, under no circumstances can human rights – which are inalienable and universal – be subordinated to intellectual property protection. 52. Likewise, intellectual property must adequately support basic rights and public policy objectives enshrined by the international community, including the Millennium Development Goals (MDGs), the Plan of Implementation of the World Summit on Sustainable Development, and the Convention on Biological Diversity. In this regard, a critical criterion in the analysis of the costs and benefits of norm-setting initiatives should be ensuring that the proposed rules or standards are supportive of these other international instruments and do not run counter to their objectives. III.2 IMPLEMENTING PRO-DEVELOPMENT PRINCIPLES AND GUIDELINES IN WIPO 53. Recognition and application of the principles and guidelines described above are essential to ensuring that the processes and outcomes of all WIPO norm-setting activities promote a development-oriented international intellectual property system. Consequently, they should be incorporated without delay into both binding and non-binding norm-setting activities, including initiatives to implement or modify current international intellectual property standards and to develop intellectual property rules in new fields. The mechanisms to implement these principles include: (a) Undertaking independent, evidence-based "Development Impact Assessment" (DIA) to consider the possible implications of each norm-setting initiative for core sustainable development indicators such as innovation, access by the public to knowledge and products, job creation, poverty alleviation, equity, respect for cultural diversity, protection of biodiversity, health, and education, particularly in developing and least developed countries. Such an independent evaluation could be carried out by the proposed WIPO Evaluation and Research Office (WERO) with the effective participation and engagement of a broad range of key stakeholders. As part of the DIA process, a cost-benefit evaluation should also be requested from other relevant international organizations and bodies, including the United Nations Conference on Trade and Development (UNCTAD), the Food and Agriculture Organization (FAO), the World Bank, the World Health Organization (WHO), the South Centre, and the Commission on Human Rights. In particular, DIAs could be: * conducted in a staged manner, including through both preliminary and advanced DIAs as the norm-setting activities are proposed and take place; * performed through a consideration of the proposed norms and the different policy scenarios, as well as their impact on several country groups, including developed, developing, and least developed countries and the world as a whole; * focused not only on direct impacts, but also on indirect and cumulative, impacts; * carried out and executed with an emphasis on the relationship between the proposed rules or standards and other international instruments, to ensure they are compatible and support objectives, rights, and flexibilities established by the international community in other fora. In particular, rights or standards that surpass those established by the WTO TRIPS Agreement should be exceptional. (b) Incorporating provisions recognizing the difference between developed and developing WIPO Member States in all norm-setting initiatives. These provisions should aim to recognize the over-arching objectives and principles of intellectual property protection, provide longer compliance periods, promote transfer of technology, safeguard the national implementation of intellectual property rules, suppress anti-competitive practices, and generally ensure intellectual property rules are a coherent part of broader development strategies. Provisions such as these have already been proposed by developing countries in the SCP for the draft Substantive Patent Law Treaty (SPLT). It is our expectation that they will be agreed to by all WIPO Member States, in the SCP and other WIPO subsidiary bodies; (c) Holding public hearings prior to the initiation of any discussion toward norm-setting in WIPO, with the broad participation of different stakeholders, including other intergovernmental organizations, academia, consumer groups, and other civil society organizations. Such participation should continue and be promoted in the course of norm-setting discussions and negotiations. IV. Principles and Guidelines for WIPO's Provision of Technical Assistance and Evaluation 54. The proposal for the Establishment of a Development Agenda for WIPO (WIPO document WO/GA/31/11) noted the central importance of WIPO in the provision of intellectual property-related technical assistance and capacity building. Apart from WIPO's own mandate, by virtue of the 1995 Agreement between WIPO and the World Trade Organization (WTO), WIPO plays an important role in the implementation of the TRIPS Agreement in developing countries. Under Article 4 of that Agreement, WIPO and WTO Secretariat are required to cooperate in matters of legal-technical and technical assistance "so as to maximize the usefulness of those activities". 55. In the context of the TRIPS Agreement, legal-technical and technical assistance activities should mean implementing its provisions, including the pro-development ones, such as Articles 7, 8, 13, 30, 31 and 40, as well as subsequent pro-development decisions such as the Doha Declaration on the TRIPS Agreement and Public Health, in a manner responsive to the development needs and aspirations of individual countries. 56. While WIPO has made significant strides in providing developing countries with technical assistance, more needs to be done to ensure that such assistance is useful to development objectives. At the same time, WIPO's technical assistance has come under criticism from various quarters including independent bodies such as the U.K Commission on Intellectual Property Rights, which in its report in 2002 characterized WIPO's technical assistance as too often planned and delivered in isolation from development goals of developing countries. 57. It is clear that for WIPO's technical assistance to be of value to developing and least developed countries, such assistance needs to be planned and delivered based on transparent principles and guidelines on the basis of which an objective assessment of its impact and effectiveness can be made. Principles and guidelines established by the Member States will provide a much needed road map for the expansion and qualitative improvement of WIPO's technical assistance. This document elaborates on the possible principles and guidelines for the provision of technical assistance by WIPO and on the mechanisms for implementing the principles and guidelines. IV.1 CONCERNS OVER THE PROVISION OF INTELLECTUAL PROPERTY TECHNICAL ASSISTANCE 58. Technical assistance in many ways is a service to promote and enhance coherent policy formulation, review and legislative reform. As developing countries continue to implement intellectual property-related treaties, such as the TRIPS Agreement, WIPO administrated treaties and to participate in new negotiations at the multilateral, regional and bilateral level, appropriate and effective technical assistance and capacity building will be crucial if these countries are to use intellectual property and other tools for fostering creativity and technological development effectively in the pursuit of their development goals. 59. The type of intellectual property technical assistance that has been provided in the last decades, as already noted, has raised a series of concerns. These concerns relate to the underlying philosophy, content and process of the technical assistance provision. The most important concerns raised by various stakeholders and the wider literature on intellectual property technical assistance include the following: * intellectual property may often be seen as an objective in itself. Broader policy concerns such as science and innovation policies, technology transfer, access to technological goods and enhanced competition have been addressed in a very limited manner; * solutions to the technical and capacity constraints tend to be identified and designed by the providers and not by the beneficiaries of the assistance; * there is a tendency to over-emphasize the benefits of intellectual property while giving very little attention to the limitations and actual costs; * the content of the technical assistance programmes has mostly focused on the implementation and enforcement of obligations and not on the use of in-built rights and flexibilities in international treaties for developing countries; * little attention has been given to different levels of development and cultural differences; * there is insufficient suport for local input and capacity building when identifying solutions that are specific to the respective country and its economic structure; * assistance is mostly targeted to a limited group of beneficiaries (mostly intellectual property offices and certain business groups); * the widespread provision, over a number of decades, of model laws to developing countries without sufficient or any accompanying advice on the trade and development effects of these laws and full analysis of the evidence regarding economic effects; and * There has been little independent evaluation of the technical assistance provided by WIPO, including to determine the impact and effectiveness of the assistance programmes. 60. With a view to addressing the above concerns and the inherent urgency of making good use of the limited resources allocated to intellectual property technical assistance in WIPO, there is need to establish a set of international principles to improve the quality of technical assistance and to adopt guidelines for the design, delivery and implementation as well as evaluation of technical assistance provided by WIPO including in the context of the 1995 Agreement between WIPO and the WTO. IV.2 PRINCIPLES AND GUIDELINES FOR THE PROVISION OF TECHNICAL ASSISTANCE 61. In order for WIPO's technical assistance to be useful in the long-term, and for there to be a basis for objective review and improvement, the Organization's activities and programmes in this field should be guided by pre-agreed principles and guidelines. Among others, the principles and guidelines could include: IV.2(a) Development Focused Technical Assistance 62. The provision of technical assistance should have as its objectives the fulfillment of the development goals of the recipient countries and broader development goals such as the United Nations Millennium Development Goals (MDGs). In designing, delivering and evaluating technical assistance, the different levels of development of various countries should be taken into account. IV.2 (b)Comprehensive and Coherent Assistance Programmes 63. Special attention shall be paid to developing the technical capacity of countries to fully use in-built flexibilities in international agreements to advance national pro-development policies. Coherence and mutual supportiveness with other relevant international instruments must also be promoted. The use of model intellectual property laws without careful evaluation of their effects should be discouraged. IV.2 (c) Integrated Approach 64. The intellectual property system cannot work in isolation from competition policy and other related regulatory regimes. In designing technical assistance programmes, there is a need to expand its coverage to include matters related to the use of competition law and policy to address abuses of intellectual property and practices that unduly restrain trade and the transfer and dissemination of technology. IV.2(d) Neutral, Unbiased and Non-Discriminatory 65. The provision of technical assistance should be neutral and of advisory nature based on actual and expressed needs. The assistance should not discriminate among recipients or issues to be addressed and should not be perceived as being a reward system for supporting certain positions in WIPO negotiations. IV.2(e) Tailor-made and Demand-driven 66. The technical assistance programmes and activities should ensure that intellectual property laws and regulations are tailored to meet each country's level of development and are fully responsive to the specific needs and problems of individual societies. The assistance should correspond to the needs of various stakeholders in developing and least developed countries and not just the intellectual property offices and rightholders. IV.2(f) Independence of Providers 67. WIPO technical assistance staff and consultants should be fully independent and potential conflicts of interest should be avoided. IV.2(g) Continuous Evaluation as to Effectiveness 68. WIPO's technical assistance programmes and activities should be continuously evaluated both internally and independently to ensure its effectiveness. IV.2(h) Transparency 69. All information about design, delivery, cost, financing, beneficiaries and implementation of technical assistance programmes as well as the results of internal and external independent evaluation should be publicly available. IV.3 MECHANISMS FOR THE IMPLEMENTATION OF PRO-DEVELOPMENT TECHNICAL ASSISTANCE 70. The adoption of principles and guidelines on technical assistance will not by itself improve the effectiveness of the technical assistance programmes if concrete mechanisms are not set up to implement and monitor the adherence to these principles and guidelines. In order to implement the above principles and guidelines, a number of measures therefore need to be undertaken. Among others, these could include: IV.3(a) Adoption of the Principles and Guidelines by the 2005 WIPO General Assembly 71. The principles and guidelines elaborated above should be adopted by the next WIPO General Assembly in September/October 2005 and should form the basis for all future WIPO technical assistance and capacity building. IV.3(b) Establishment of Databases and Dedicated Webpage to Improve Information sharing 72. There is a need to improve information sharing by using existing resources including databases on technical cooperation by major donors and providers. A web page with all technical assistance information provided by WIPO and other relevant international organizations and donors could be created to enhance transparency and allow for objective monitoring processes. A permanent notification system could assist in keeping such a system operative and updated. Whenever a country requests WIPO's assistance, WIPO could, by means of the website notify Members and other interested parties including observers that its assistance has been sought and where models, drafts etc. are suggested, these should also be publicly available. IV.3 (c) Defining and Separating the Functions of the WIPO Secretariat 73. Exploratory work should be undertaken to analyze options for separating norm-setting functions from technical assistance functions of the WIPO Secretariat. Two possibilities, among others, could be considered. One option could be for the General Assembly to merge most of the functions of the Economic Development Sector with those of the WIPO World Wide Academy (WWA) and set up a semi-independent arm for research, technical assistance and capacity building. While such a structure could still remain part of the WIPO Secretariat, under the Director General, an independent advisory panel appointed by the General Assembly could be constituted to internally evaluate the performance of technical assistance programmes, monitor the adherence to the proposed principles and guidelines and help set priorities for research and assistance. 74. Alternatively, a wholly independent entity, not part of the WIPO Secretariat, but funded by WIPO, could be established along the model of the Advisory Centre on WTO Law (ACWL). The managing board of such an independent entity could be drawn from the WIPO Secretariat, UNCTAD, UNDP, UNESCO, UNIDO, WTO, WHO and FAO as well as other international organisations with expertise in development and intellectual property. The board could also have representation from industry and from consumer and public interest groups. 75. Whichever approach is taken, the technical assistance activities of WIPO could at any rate be subject to the independent evaluation and monitoring of the proposed WIPO Evaluation and Research Office (WERO). We have provided the details on the operation and possible functions of WERO in the section on the mandate and governance of WIPO. IV.3(d) Establishment of a Code of Ethics and Assuring independence of Consultants 76. Consideration should be given to developing an ethics code for the Secretariat's technical assistance staff and consultants to ensure the highest level of professionalism and neutrality. Such a code of ethics could also be useful to protect the staff and consultants from undue influence and/or harassment. In addition, the roster of consultants for technical assistance should be available to the public. The selection process for consultants should look at potential conflicts of interest in relation to parallel public or private activities as well as ethical behavior. IV.3(e) Development of Indicators and Benchmarks for Evaluation 77. A process for identifying relevant indicators and benchmarks for evaluating the Organization's technical assistance activities should be commenced as soon as possible. UNCTAD, the World Bank and other international organizations could provide inputs in the identification of relevant indicators. V. GUIDELINES FOR FUTURE WORK ON TRANSFER AND DISSEMINATION OF TECHNOLOGY AND RELATED COMPETITION POLICIES 78. Transfer of technology is a comprehensive term covering mechanisms for transmitting technical information across borders and its effective diffusion into the host economy. It refers to numerous complex processes, ranging from innovation and international marketing of technology to its absorption and imitation. Transfer of technology may be realized through formal –market- as well as informal –non-market- means. A formal or market mechanism is a commercial transaction, based on a legal arrangement between consenting parties. It includes, in the main, trade in goods, foreign direct investment (FDI), licensing, joint research and development (R&D) arrangements. 79. There are also important legitimate informal, non-market channels of transfer of technology. Perhaps most significant is the process of imitation through product inspection, reverse engineering, decompilation of software, and even simple trial and error. Another means is to study available information about new technologies. Patent applications are available for this purpose. Thus, patents are expected to provide both a direct source of technology transfer, through FDI and licensing, and an indirect form through inspection. To play this role, patent disclosures need to provide sufficient information for engineers to understand the technologies. 80. In brief, under these various mechanisms, intellectual property protection can play a role but not a unique role, for transfer and dissemination of technology. The TRIPS Agreement recognizes precisely that the transfer and dissemination of technology should be a fundamental objective of the global intellectual property system. Moreover, under Article 1 of the Agreement between WIPO and the United Nations (1974), WIPO is recognized as a specialized agency with the responsibility for taking appropriate measures for facilitating transfer of technology related to industrial property to developing countries in order to accelerate economic, social and cultural development. 81. Even in the case of formal technology transfers that occur mainly in voluntary transactions, it has been recognized that this process often does not work as intended and that the unwillingness to transfer technologies might pose a competitive threat. In fact, it is frequently the case that IP right holders choose to exercise the monopoly rights conferred by patents and other forms of intellectual property in a manner that runs counter to the purported principles and objectives of the IP system, including the transfer and dissemination of technology. Policies are thus needed to rectify this situation, by removing impediments to the transfer and dissemination of knowledge and to lower the costs and risks of technology acquisition. 82. As proposed in document WO/GA/31/11, the development dimension of intellectual property policy requires that WIPO, through a dedicated process, explore the type of policies, initiatives and reforms necessary to contribute to the transfer and dissemination of technology to the benefit of all countries. Such work is in fact indispensable if WIPO is to fulfill the second part of its U.N mandate which confers WIPO with the responsibility of taking appropriate action for "facilitating the transfer of technology". This submission therefore elaborates on how such a process could be undertaken in WIPO and suggests possible guidelines and approaches for a future programme on transfer of technology-related matters in WIPO. V.1 PRO-DEVELOPMENT APPROACHES TO TRANSFER AND DISSEMINATION OF TECHNOLOGY 83. The issue of transfer of technology to developing countries is not new. It has been in the international agenda for decades. However, drawing on the lessons of the past and a better understanding of the process, a pro-development approach to this subject is called for. To this end, this section of the submission reviews, first, possible mechanisms that developed countries might promote to facilitate the transfer and dissemination of technology to developing countries. Secondly, the paper explores, in a non-exhaustive manner, possible new initiatives at the multilateral level that could contribute to this endeavor. It, finally, concludes with some observations on the role of competition policies in this area. V.2 INTELLECTUAL PROPERTY POLICIES AND STANDARDS 84. Historically, the intellectual property system has included elements that are supportive of efforts to promote technology transfer and follow-on innovation, effective mostly under circumstances prevailing in the developing countries. Patents, trade secrets, copyrights, and trademarks, however, can hamper or create impediments to tech-transfer, particularly when considered through the perspective of technology flows from Developed to Developing countries, i.e. from technology producer nations to technology consumer nations. Therefore attention should be paid to a number of intellectual property specific instruments that while effectively recognizing the rights of inventors and creators across the board, produces very unbalanced results in terms of encouraging transfer of technology to developing countries and the establishment of functional national innovation systems in their respective national jurisdictions. 85. From this perspective a more dynamic approach to transfer and dissemination of technology, for the benefit of developing and least developed countries, should incorporate, among others, appropriate policies with respect to: * protection criteria (e.g. patentability); * duration of rights beyond a reasonable time to justify rewarding innovation and creativity; * exceptions to exclusive rights; * use of public tools (e.g. disclosure and working requirements, compulsory licensing, open source software); * system of protection relevant to national circumstances; * administrative and procedural aspects. 86. The above listing, although illustrative, covers a whole range of technical issues that could not be exhaustively covered in this paper. What follows is, however, indicative of what could be done in the context of the Development Agenda. V.2(a) Supportive IP-related Policies by Industrialized Countries 87. With a view to promoting transfer and dissemination of technology, among other related objectives, WIPO should contribute to a debate with other relevant international organizations, as appropriate, on such initiatives as an undertaking by developed countries to provide: * technical and financial assistance for improving the ability of countries to absorb technology; * fiscal benefits to firms transferring technologies to developing countries of the same type often available in developed countries for firms that transfer technologies to nationally less developed regions; * same tax advantages for R&D performed abroad as for R&D done at home. For example, to meet the terms of Article 66.2, TRIPS, there might be somewhat greater advantages offered for R&D performed in developing countries; * fiscal incentives to encourage enterprises to train scientific, engineering and management graduates from developing countries, with a view to their knowledge being used for development of technology in their country of origin; * public resources, such as those from the National Science Foundation or National Institutes for Health in the United States, could be used to support research into the technology development and technology transfer needs of developing countries; * grant programs could be established for research into technologies that would be of greatest productivity for the purpose of meeting priority social needs of developing countries. Technologies developed under such programs could be made publicly available, specially those funded through public resources; * grant programs could be devised that offer support to proposals that meaningfully involve research teams in developing countries, in partnership with research groups in donor countries; * Universities should be encouraged to recruit and train students from developing countries in science, technology, and management. Incentives for setting up degree programs through distance learning or even foreign establishments may be particularly effective; * Special trust funds for the training of scientific and technical personnel, for facilitating the transfer of technologies that are particularly sensitive for the provision of public goods, and for encouraging research in developing countries. V.2(b) Multilateral supportive Measures 88. At the multilateral level, the following initiatives could be considered: * Adoption of commitments like those contained in Article 66.2 of the TRIPS Agreement, expanded to benefit all developing countries; * the establishment of a special fee on applications through the Patent Cooperation Treaty, the revenues of which would be earmarked for the promotion of research and development (R&D) activities in the developing and least developed countries; * the establishment of an intermediary conduit to reduce the asymmetric information problem in private transactions between technology buyers and sellers, for knowledge about successful technology-acquisition programs that have been undertaken by national and sub-national governments in the past. It could serve a useful role in encouraging collaboration and information sharing among member governments. Such programme could involve, for example, detailed information about past policies and effective partnerships between agencies and domestic firms in acquiring technologies and the terms involved, such as royalty rates and contract clauses that resulted in actual local absorption. They could also describe the most effective roles for public research facilities and universities in facilitating technology transfer. Once enough information of this type has been compiled and studied, it could attempt to develop a model technology transfer contract that could serve as a guideline for transfer of technology and would represent the legitimate interests of both buyers and sellers; * A multilateral agreement where signatories would place into the public domain, or find other means of sharing at modest cost, the results of largely publicly funded research. The idea is to set out a mechanism for increasing the international flow of technical information, especially to developing countries, through expansion of the public domain in scientific and technological information, safeguarding, in particular, the public nature of information that is publicly developed and funded without unduly restricting private rights in commercial technologies. V.3 COMPETITION POLICIES 89. Exploitation of intellectual property rights could give rise to anticompetitive behaviour, whether by individual firms or by concerted practices or agreement among firms. An adequate definition and implementation of public policies to deal with this problem represents one of the most important criteria for the efficient functioning of any intellectual property system and thus to the enhancement of the transfer and dissemination of technology. A pro-competitive intellectual property system needs to incorporate appropriate competition policies, among others, to prevent the abuse of intellectual property rights, the resort to practices that unreasonable restrain trade or adversely affect the international transfer of technology. 90. However, relationships between intellectual property rights and their potential abuse in technology markets are complex and require considerable expertise in diagnosis and treatment. Moreover, the scope for abusing intellectual property rights depends on the competitive nature of distribution markets and entry possibilities. To rely on this avenue for enhancing transfer of technology may require a broad policy approach to expanding dynamic competition. Work in this area should not be alien to the pursuit of a Development Agenda in WIPO. 91. Intellectual property laws aim at conferring exclusive rights on individuals to enable owners to appropriate the full market value of the protected subject matter. By promising that the intellectual property holder may obtain a full reward from the market, intellectual property rights may serve as an incentive for the creation, use and exploitation of inventions, works, marks and designs. 92. However, it is often the case that intellectual property owners exploit their legal rights to unreasonably block competition. They may do this, for example, by exploiting the unique characteristics of certain protected products that prevent rival firms from developing alternative products or entering certain markets, and refusing to grant licenses to prospective competitors. While the traditional problems of technology transfer in hardware industries persist, new problems have arisen in the service industries, and practices other than those relating to licensing have become more important, in particular in regard to foreign direct investment, cooperation agreements, outsourcing, standardization, interconnection, and access to information. 93. Three types of conflicts may arise between the pursuit of competitiveness and intellectual property rights. First, intellectual property may be used contrary to the objectives and conditions of its protection, a situation called misuse. Second, market power resulting from intellectual property may be used to extend the protection beyond its purpose, such as to enhance, extend or abuse monopoly power. Third, agreements on the use or the exploitation of intellectual property may be concluded in restraint of trade or adversely affecting the transfer or the dissemination of technology or other knowledge, a situation called restrictive contracts or concerted practice. In order to prevent or control such conflicts and to distinguish pernicious practices from competition-enhancing ones, many countries have enacted antitrust regulations or other competition legislation to respond to anticompetitive behaviour. Competition rules are not designed to curb the functioning of the intellectual property system, but rather to safeguard its proper functioning. 94. The TRIPS Agreement sets out general principles to establish and enforce anti-monopoly policies. The relevant competition provisions of TRIPS are Article 8.2 and Article 40. Article 8.2 is part of the "General Provisions and Basic Principles" of Part I of the Agreement. Another relevant competition provision of the Agreement is Article 31(k) dealing with compulsory licenses in the case of practices which have been determined, after judicial or administrative process, to be anticompetitive and need to be remedied by the grant of compulsory licenses. 95. Effective administration and enforcement of an intellectual property-related competition policy appear to be particularly important, in view of the interdependency of intellectual property protection and competition. Where the efficient functioning of intellectual property is impaired by restrictive practices, the market-oriented incentives decline and social costs rise. In this respect, a well-balanced design of intellectual property treaties and national laws as regards, for example, exceptions for prior users, experimental or fair use, adequate disclosure, efficient and working requirements and misuse defences, may help both to unburden competition policy and encourage private action against undue claims for protection. 96. The complexities of the application of substantive competition policy rules relating to intellectual property require specialized and administrative agencies and courts. 97. A major concern that has been expressed in respect of the intellectual property system as regards transfer of technology is the potential for abuse of exclusive rights conferred by patents and other forms of intellectual property. In this context, the work on technology transfer in WIPO may address elements such as: * the consideration of model approaches on how to implement the relevant provisions of TRIPS; * the inclusion in new intellectual property treaties of relevant provisions to deal with anti-competitive behaviour or abuse of monopoly rights by rights holders, such as the proposed Substantive Patent Law Treaty (SPLT); * the development of an international framework to deal with issues of substantive law relating to anti-competitive licensing practices primarily those that adversely affect the transfer and dissemination of technology and restrain trade; * the provision of technical cooperation to developing countries, at their request, to better understand the interface between intellectual property rights and competition policies; * implementation of intellectual property policies in developing countries should be matched with appropriate enforcement mechanisms that effectively restrain anti-competitive behaviour; * Developed countries authorities to undertake, at the request of affected countries, enforcement actions against firms headquartered or located in their jurisdictions. 98. In sum, any implementation of substantive rules of competition policy must take account of a large number of complex factors, such as national and international market conditions and interdependencies and the goals and structure of national intellectual property (including its built-in pro-competitive rules such as experimental or fair use, exhaustion, patent or copyright misuse defences). This is certainly no easy task and not one that can be complied with by isolated policies or by one developing country. Rather this is a complex, challenging and time-consuming endeavour that should be part and parcel of the programmatic work of WIPO. From jeebesh at sarai.net Thu Apr 7 21:56:34 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Thu, 07 Apr 2005 21:56:34 +0530 Subject: [Commons-Law] Grokster Transcript PDF Message-ID: <42555F3A.4070306@sarai.net> http://www.boingboing.net/2005/04/06/grokster_transcript_.html Wednesday, April 6, 2005 *Grokster transcript PDF* The oral argument from last month's Grokster Supreme Court case (where EFF argued that technology companies shouldn't have to imagine all the infringing ways that their customers might use their products and design to prevent them -- otherwise the iPod, Outlook and the Xerox machine would all be illegal) is available online now as a transcript. It's 55 pages long, but the type is big and double-spaced! 144K PDF Link (/via Copyfight /) From prabhuram at gmail.com Thu Apr 7 22:49:30 2005 From: prabhuram at gmail.com (Ram) Date: Thu, 7 Apr 2005 19:19:30 +0200 Subject: [Commons-Law] Richard A. Epstein: Two ways of viewing IP Message-ID: <68752c9f05040710193be57865@mail.gmail.com> >Financial Times Richard A. Epstein: Two ways of viewing IP By Richard A. Epstein Published: April 7 2005 16:08 | Last updated: April 7 2005 16:08 Here are two ways to think about intellectual property. The first views it as a subset of property relations generally, to which the general principles of property law apply. Alternatively, it counts as a special kingdom of its own, governed by rules that operate at right angles to ordinary property rules. In truth, any exhaustive treatment of the subject will reveal both points of similarity and tension between the two fields. But the safer approach starts with the happy assumption that sound rules of property law will on average carry over to IP. That proposition is emphatically true in the debate that pits property rules against liability rules in structuring property arrangements. This basic distinction is as old as the common law. When faced with clear violations of property rights, judges always have to choose the appropriate remedy for the innocent party. Typically, in the name of complete and perfect relief, they issue injunctions that stopped the violation and award cash payments for interim damage. An alternative strategy, which could be adopted even for deliberate wrongs, awards damages equal to the plaintiff's loss, but allows the plaintiff to keep the property taken. In general, most legal systems opt for the first of these legal regimes. The key consequence is to deny the defendant a private right of eminent domain - taking property upon payment of just compensation - in order to force a voluntary transaction, which generates mutual gains, between the parties. A great 1972 article of Guido Calabresi and Douglas Melamed dubbed the first of these two regimes as one with a "property rule," and the second as one with a "liability rule." It hinted broadly that a liability rule - where property is taken for a fair valuation against the consent of the owner - might be preferable to a property rule because it prevents a current owner from "holding out" for an exorbitant payment for a resource to which it attaches little or no value. The owner of scrub land, for example may deny the right of passage to the owner of a nearby mine, if some enormous payment is not forthcoming. The liability rule eases that problem, even if it creates another - the valuation of the interest that is lost. The common law balked even in this case, in the absence of legislative authorisation. This extreme example shows how far it tilted in favour of strong property rights. Only cases of abject necessity upset the usual rule that transfer of property interest requires mutual consent. That strong presumption in favour of property rules has, however, come under increasing academic attack by IP scholars who favour a liability rule as a way to overcome the holdout problem, especially with respect to pharmaceutical patents. In these cases, abject necessity is not the motivating factor. But the use of a liability rule for drug patents has a different motivation. The patent system encourages the patent owner to price its product above marginal cost in order to recover the fixed costs of its initial investments, which by some estimates run to over $800m per new chemical entity. That high price excludes from the market users who can pay for the marginal cost of their own pill, but not the monopoly price. The liability rule is said to create the best of both worlds. The patent owner gets the fair value of the patent in a lump sum, so its incentives to produce are left undisturbed. The individual consumer pays only marginal cost, so no one is excluded. Unfortunately, however, there are no free lunches in this game. Think of the alternatives: condemning the patent outright today imposes intractable questions of valuation not found with scrub lands. No private voluntary agreement for patent sharing relies on an outright sale; all are sharing arrangements by way of licenses filled with terms. The once and for all valuation is too uncertain, given that entry by new drugs, changes in US Food and Drug Administration warnings, discovery of new adverse side effects or unanticipated uses can completely wreck the initial valuations. Better it is to keep patents strong, and to encourage innovation of new drugs that are substitutes for the incumbent, which won't happen if low-ball estimates for compensation are used. Bad as the outright purchase system is, worse has been proposed. Recently, a Committee in the District of Columbia has reported out a measure (on which I have consulted with the Pharmaceutical Research and Manufacturers of America) that require drug patentees to issue non-exclusive licenses to firms designated by the District for production drugs for District representatives. The firm, or firms, chosen would then go into competition with the incumbent in a program, with a political promise to save millions to District consumers. The valuation issues in these selective licenses are mind-boggling, even if one gets over the initial hump, that only firms that have received FDA licenses can make drugs, and then only after the initial license has expired. For our purposes, the key insight is that the family of liability rules in all its forms cannot achieve the economic nirvana of competitive pricing without imposing enormous administrative and incentive costs. David Hume had it right long ago when he said that every sound system of property rights, whether for tangible or intellectual property, should preserve the settled expectations of all members of the community. Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago, and the Peter and Kirsten Senior Fellow, the Hoover Institution -- Prabhu Ram, Max-Planck-Institut for Intellectual Property, Competition and Tax Law, MarstallPlatz 1, 80539 Munich GERMANY Tel: + 49 89 24246226 Mob: + 49 17629830521 Web: http://infoserve.blogspot.com From jeebesh at sarai.net Fri Apr 8 00:50:49 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Fri, 08 Apr 2005 00:50:49 +0530 Subject: [Commons-Law] Grokster Transcript PDF In-Reply-To: <42555F3A.4070306@sarai.net> References: <42555F3A.4070306@sarai.net> Message-ID: <42558811.5070507@sarai.net> hey lawrence read this transcript. the last statement by MGM's lawyers is a photocopy of the `panic` brief in lamhe case. "Now, their rule is a rule of immunity. It's a free pass. It says, all you've got to do is speculate about noninfringing use, and you can continue with infringement, ad infinitum. And that's not a rule that protects innovation; that's a rule that destroys innovation. It certainly destroys the innovation that the creators of the copyright law is supposed to protect, and ......And, beyond that, Justice Kennedy, as you suggested, it isn't just that they get to use our copyrighted -- the value of our copyrighted materials as the seed capital, that's the whole business. That is the whole business. And that's the reality here, and that's the problem. They can talk about the hundreds of thousands, or maybe even millions, of uses, but the reality is that there are 2.6 billion downloads, unlawfully, every month. So what they're talking about as lawful is a tiny, teeny little fraction of what's really going on here." (pg 52 - 54) why dont you to do a comparative take on these. compare the lamhe affidafit with these statements. it will be fun and make some interesting comparision.....please do it....well production relations are now becoming a barrier to productive forces!! maybe dear charlie was correct afterall..... cheers jeeebesh Jeebesh Bagchi wrote: > http://www.boingboing.net/2005/04/06/grokster_transcript_.html > > > Wednesday, April 6, 2005 > > *Grokster transcript PDF* > The oral argument from last month's Grokster Supreme Court case (where > EFF argued that technology companies shouldn't have to imagine all the > infringing ways that their customers might use their products and > design to prevent them -- otherwise the iPod, Outlook and the Xerox > machine would all be illegal) is available online now as a transcript. > It's 55 pages long, but the type is big and double-spaced! 144K PDF > Link > > (/via Copyfight /) > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > From hbs.law at gmail.com Fri Apr 8 00:26:48 2005 From: hbs.law at gmail.com (Hasit seth) Date: Thu, 7 Apr 2005 14:56:48 -0400 Subject: [Commons-Law] More on the Development Agenda (Sudhir) (Hasit) In-Reply-To: <20050407153115.F0EEB28D939@mail.sarai.net> References: <20050407153115.F0EEB28D939@mail.sarai.net> Message-ID: <8b60429e050407115615aa242e@mail.gmail.com> Dear Sudhir and others, Your comments about CSIR and Dr. Mashelkar are interesting. Let me add a little from it to balance the perspective. CSIR is an admirable effort at creating an industrial and applied research base in India when in first 50 years of independence India had little industrial research base. Industrial research needs a market (consumer, military or other) to flourish and to invest in research. Without a viable industrial consumer market in early decades, government had to step in. Also, those were the years of "socialist" model of science and technology. CSIR labs have done some good work. For example, work of National Chemical Laboratories in catalyst research is quite good. More details are of course here http://www.csir.res.in/. Research capabilities in fields like aerospace take decades to mature. Also, a lot of this industrial research is pretty much falls under basic research too. I do see a terrible game of one-upmanship in CSIR research. Their patents usually list a dozen or more inventors, which though not wrong is quite unusual. I guess another case of overstaffing as is common with Government of India. As for patent quality being abysmal, it reflects the research done. If a lot of money is spent on staff salaries and that too on hundreds of non-scientific adminstrative staff, then I guess we get a big payroll not a steady output of commerically valuable research. Also, government research has no pressure of market to bring out useful research. Exception would be Soviet Russia research where if goals of the "great leader" were not fulfilled by a government lab then a one way ticket to Sieberia was ensured. Dr. Mashelkar's insistence on patents is nothing abnormal. If you are in the game of industrial research like CSIR is, then patents are the common quantitative indicators of research outputs. Patenting will at least give some returns for the vast amount of public money spent in industrial research in the first place. I am sure no one is arguing that quantum of money spent on patenting is a large part of CSIR budget. With the new patent law which will ensure that anything invented in India needs a patent application to be filed first in India will bring down costs quite a lot. An English pat. application filed in India, when it is being refiled in the US costs at least 1/4th or 1/5th of original US patent application written afresh. What exactly should be the set of policies governing research and innovation in a developing society? India's national innovation foundation (NIF) promotes almost only rural research. Does NIF think that India just needs rural research? Rural research is seriously admirable work, but this is a lopsided idea of a research policy. Rural innovations are just one little aspect of technology spectrum. Developing societies want and need every possible leap in technology but how about contributing something back? If we do not create technology then we will be reduced to being only consumers. Cellular phone is just one example about how advanced technology can provide tools for accelerating development. Instead of cutting edge research in wireless technology, we are more interested in promoting divine benefits of cow-urine. India's C-DOT (Centre for Development of Telematics) did cutting edge work to create rural electronic exchanges. It was C-DOT's RAX and MAX exchnages that gave us STD dialling and put an end to "trunk calls". They designed it from scratch. Amazing work. What next? Nothing, it became another decaying government lab. We all love using computers, internet, cell-phones, TVs and every other modern gadget and what have we in India invented or improved out of this? Countries, societies and industries which create such cutting edge tools and take giant leaps in technology are not going to give away their technology out of some charitable aims. It cost them real money and effort to create it. They will protect it as much as possible, patents or no-patents. Only way to compete is to create more technology, improve existing technology. Narrow focus of anti-patents debate misses this big picture. Regards, Hasit Seth On Apr 7, 2005 11:31 AM, commons-law-request at sarai.net wrote: > Send commons-law mailing list submissions to > commons-law at sarai.net > > To subscribe or unsubscribe via the World Wide Web, visit > https://mail.sarai.net/mailman/listinfo/commons-law > or, via email, send a message with subject or body 'help' to > commons-law-request at sarai.net > > You can reach the person managing the list at > commons-law-owner at sarai.net > > When replying, please edit your Subject line so it is more specific > than "Re: Contents of commons-law digest..." > > Today's Topics: > > 1. More on the Development Agenda (sudhir at circuit.sarai.net) > 2. WIPO - Group of Friends of Development (Pedro de Paranagua Moniz) > > ---------------------------------------------------------------------- > > Message: 1 > Date: Thu, 7 Apr 2005 12:42:35 +0200 > From: > Subject: [Commons-Law] More on the Development Agenda > To: > Message-ID: <2b5da2bcecde7c000f71f8b2eac3a968 at sarai.net> > > Dear Shishir and others > > I've been following the Development Agenda process with some interest. The > policy making process/institutions in Indian Intellectual property are > diverse and motivated by contrasting concerns. So here is my take on the > development agenda process. > > First, the Indian representative at recent WIPO discussions on Copyright > law have been happy to go with the strategy of delaying all substantive > norm setting decisions till the development agenda is responded to. So if > this is the official position of the government then they are inclined to > support the agenda. Shyamkrishna, a member of this list, was present at > some of these meetings and hopefully will add to this. > > Secondly, having had the opportunity to listen to Dr Mashelkar over many > years I'm not in the least bit surprised that he was Chairing the > Casablanca sessions. A few reasons follow: > > ---Dr Mashelkar has always advanced strategies for stronger and more IPR > protection - his only argument if at all was that Indians should get on the > IP ladder. That is a nationalist argument which has no developmentalist > agenda unless one assumes that they are one and the same. > > ---Moreover Dr Mashelkar has never contributed or participated in an > intellectual or critical inquiry into IP law. Let me confine myself to one > example. His poor grasp of IP more generally leads him to trumpet the CSIR > labs increased patent filings to about 200 a year. Though quantitatively a > significant increase, the bluff is called by the MIT Technology Review > Patent Scorecards for 2002-4 which conducts a strategic analysis of these > IP filings to show that if one assesses commercial viability and filings in > active fields of technology the Indian filings have an abysmal record. So > patent filings look good for CSIR promos and patent lawyers who charge high > fees but is another sink hole into which taxpayer money disappears! > > ---Indian public life is mired in a regressive preference for personality > over policy and principle. It always surprised me that senior advocates of > the Supreme Court whose every day practice was representing big business in > court, were the celebrities of the human rights circuit the world over. It > took me a while to work out their success at speaking different languages > to different audiences. When Justice Krishna Iyer - an icon of human rights > organizations all over India - was asked by an agitated audience why he > chose to accept the BJP government's position at the National Commission to > Review the Working of the Constitution expressly set up to rewrite the > Constitution, he nonchalantly responded 'Why worry - when I'm there!!'. I > sincerely hope that Dr Mashelkar can offer us a better explanation... > > Today’s announcement that Dr Mashelkar will head the Expert Patent Review > Committee set up by the Union Government today adds to the frustration of > those of who take an active interest in IP policy and watch rigor mortis > setting into the policy making process in India. > > Best > Sudhir > > ------------------------------ > > Message: 2 > Date: Thu, 07 Apr 2005 12:45:07 +0100 > From: Pedro de Paranagua Moniz > Subject: [Commons-Law] WIPO - Group of Friends of Development > To: undisclosed-recipients: ; > Message-ID: <42551D43.7060608 at yahoo.com.br> > Content-Type: text/plain; charset="windows-1252"; format=flowed > > Fresh news re. the proposal submitted yesterday, led by Brazil. > > rgds, > > Pedro > > Pedro de Paranaguá Moniz > Masters of Law (LL.M.) candidate, class of 2004/2005 > Queen Mary, University of London > > **************** > PROPOSAL TO ESTABLISH A DEVELOPMENT AGENDA > FOR THE WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO): > An Elaboration of Issues Raised in Document WO/GA/31/11 > > Submission by the Group of Friends of Development > > I. INTRODUCTION: PROMOTING DEVELOPMENT AND ACCESS TO KNOWLEDGE FOR ALL > During the 31st Session of the WIPO General Assembly (September 27 to > October 5, 2004), the delegations of Argentina, Bolivia, Brazil, Cuba, > Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, > South Africa, Tanzania and Venezuela co-sponsored a proposal to > establish a "Development Agenda" for the World Intellectual Property > Organization (tabled as Document WO/GA/31/11). The present submission by > the Group of Friends of Development seeks further to elaborate four > different sections of document WO/GA/31/11, with a view to incorporating > the development dimension into WIPO´s work. The four issues dealt with > in this new submission are, namely: WIPO's mandate and governance; > norm-setting; technical cooperation; and transfer of technology. This > document is intended only as a further contribution to the debate on the > establishment of a "development agenda" for WIPO. It is not meant to be > exhaustive of all possible initiatives that may be undertaken and issues > that may be addressed under that aegis. The Friends of Development > reserve the right to make additional contributions to the debate as > discussions continue. Future documents may further elaborate the > proposals contained in the present submission, or address new issues. > 2. The basic concern of the Group of Friends of Development is to > ensure that WIPO activities and intellectual property discussions are > driven towards development-oriented results. As pointed out by document > WO/GA/31/11, several international organizations have recognized that > much more needs to be done to reach effective results that meet the > challenges of development. Leading this process, the United Nations > adopted the Millennium Development Goals, which established a firm > commitment by the international community to address the significant > problems that affect developing countries and LDCs. The Programme of > Action for the Least Developed Countries for the Decade 2001 2010, the > Monterey Consensus, the Johannesburg Declaration on Sustainable > Development and the Plan of Implementation agreed at the World Summit on > Sustainable Development, the Declaration of Principles and the Plan of > Action of the first phase of the World Summit on the Information > Society, and the Sao Paulo Consensus adopted at UNCTAD XI, have all > placed development at the heart of their concerns and actions. This has > also been the case in the context of the current Doha round of > multilateral trade negotiations of the World Trade Organization (the > "Doha Development Agenda"), which was launched at the WTO's 4th > Ministerial Conference, in November 2001. > 3. The aforementioned examples point to a trend towards adopting > development-oriented agendas in international fora, in response to the > widespread perception that the international debate must tackle this > issue. The proposal to establish a "Development Agenda" for WIPO submits > that the Organization's work should reflect this trend, by bringing the > development dimension into all its discussions and activities. The basic > proposal of the "Development Agenda" is that development should be a > central dimension in any negotiation involving IP systems. > 4. Experience demonstrates that WIPO has concentrated its efforts in > the diffusion of standardized approaches to IP policies that assume, > from an uncritical standpoint, that development follows suit as > intellectual property rights protection is strengthened. Current > worldwide debate questioning the appropriateness of such an approach has > not been reflected in WIPO's work. Rather, discussions in WIPO have > overlooked the importance of a systematic assessment of the implications > of increased and standardized IPR protection in terms of access to and > diffusion of science, technology and related knowledge and know-how, > especially for LDCs and developing countries. > 5. The proposal for the establishment of a "Development Agenda" is > also based on the premise that development concerns should be given > emphasis in WIPO activities, so that the Organization may comply with > its UN mandate. One of the intentions of the "Development Agenda", > therefore, is to promote a deeper reflection on the development > implications of current and new approaches to different IP policy > choices and international norm setting, as well as a more accurate and > pervasive discussion on the consequences of their adoption by countries > at different stages of social, economic and technological development. > It is important to promote a critical examination of the implications > for developing countries of the adoption of increased IPR protection, > rather than seek to approach this highly controversial issue as if it > were governed by absolute truths, solely under the one dimensional > perspective of the private rights holders, ignoring the broader public > interest. > 6. Accordingly, while the "Development Agenda" initiative recognizes > that intellectual property is relevant to the process of building > technological capacity, it also draws attention to the importance of > public interest flexibilities provided for by the IP system itself and > the role these flexibilities might play in fostering > development-oriented policies. Although a globalized economy poses > overwhelming challenges for policy-making, such as the tendency towards > uniformity, it is important to bear in mind the serious disparities that > continue to exist in the levels of human, economic and technological > development among different States. States at differing levels of > development face different challenges and have different needs. This > fact should always be borne in mind in the realm of intellectual > property policy-making. > 7. From such a perspective, as pointed out in document WO/GA/31/11, > intellectual property should be regarded not as an end in itself, but as > a means for promoting the public interest, innovation, and access to > science, technology and the promotion of diverse national creative > industries - in order to ensure material progress and welfare in the > long run. Promotion of intellectual property protection alone is not > sufficient if unaccompanied by policies that respond to the specific > development needs of each country. > 8. As WIPO holds an important position in the field of IP issues, the > Organization is expected to be guided, in all its activities, by this > wider perspective in which IPRs are regarded as instruments that could > facilitate social and economic gains for all countries, provided that > different national circumstances are properly taken into account. > 9. It is incumbent upon WIPO, therefore, to effectively incorporate > development promotion as one of its main goals, as already foreseen by > the UN-WIPO Agreement. This brings to the forefront, inter alia, the > importance of: weighing the costs and benefits generated by IPR > protection; safeguarding public interest flexibilities in both ongoing > and future negotiations taking place in the Organization; addressing the > issue of technical cooperation from a broader perspective – in which > countries are helped to frame IP legislation that responds to their > specific needs; guaranteeing wider transparency and participation in the > discussions; and ensuring that the IP system effectively fosters > innovation and technological development. The balance between the public > interest and those of rights holders, as well as the balance between the > interests of the scientific community and those of the technology and IP > based industries should be struck not only in developed countries but > also within the specific contexts and conditions of each developing > country that is a member of WIPO. This is why IP agreements and minimum > international standards should be fine-tuned to address different levels > of development of member countries, their respective social needs and > industrial challenges as well as their capacity to participate in and > benefit from the IP system through generation of patents and IPs > resulting from the efforts of their own national communities and > industries. These concerns are of a cross-cutting nature, since they > relate to all WIPO activities. This highlights the importance of dealing > with them in all WIPO fora. > 10. The Friends of Development attach importance to the role of > intellectual property in the path towards development. In order to > ensure the credibility of the IP system, however, more has to be done in > order to ensure that peoples all over the world have access to knowledge > and technological development. We believe WIPO could have a new role as > a relevant actor in this context if it incorporates the development > dimension into its work. > > II. ELEMENTS FOR THE REVIEW OF THE MANDATE AND GOVERNANCE OF WIPO > > 11. Document WO/GA/31/11 noted that WIPO as a member of the United > Nations (U.N.) family should be guided by the development goals that the > U.N has set for itself, such as the Millennium Development Goals (MDGs), > and that development concerns should be fully incorporated into all WIPO > programmes and activities. In the proposal, the co-sponsors further > pointed out that WIPO's role is not to be limited to the promotion of > intellectual property protection. > > 12. The proposal that WIPO should be guided by the broader goals of the > UN system is a response to and reflects recent developments in many > different international fora, where it has been recognized that > intellectual property protection has serious cross-cutting implications > for several different areas of public policy, including education, > public health, nutrition, the environment, cultural diversity and the > promotion of science and technological development more generally. In > this regard, the adoption of the Doha Declaration on the TRIPS Agreement > and Public Health at the 4th Ministerial Conference of the World Trade > Organization (WTO) represented a crucial milestone, whereupon the > international community recognized that TRIPS, as an international > instrument for the protection of intellectual property, should always > operate in a manner supportive of the public health objectives of all > countries. Relevant developments have taken place in other international > fora as well. For example, the "Sao Paulo Consensus", adopted by UNCTAD > XI, enshrined the concept of "policy space" in the context of economic > policy-making, underscoring its relevance to the pursuit of the > development objectives of developing countries and LDCs. > > 13. Now more than ever before, it has become clear that in the > increasingly global, knowledge economy, access to knowledge and > technology is indispensable for social and economic development and for > the well-being of peoples in all countries. Consequently, any policies > and international norm-setting, particularly in relation to intellectual > property protection, which may have an impact on access to knowledge and > technological development, pose a serious development concern for > developing countries and LDCs. > > II.1. WIPO'S U.N. MANDATE: ADDRESSING POSSIBLE IMPEDIMENTS TO ITS > EFFECTIVE IMPLEMENTATION > > 14. Given the cross-cutting implications of intellectual property > protection, in particular for developing countries and LDCs, as well as > consumers of new knowledge and technology in both the North and the > South, discussions on intellectual property should not and cannot be > pursued in a vacuum. In effect, because IP protection has an impact on > different areas of public policy of such vital importance to social and > cultural development, immediate steps should be taken to ensure the full > implementation and monitoring of WIPO's U.N. mandate, by clarifying the > mandate of the Organization and by strengthening its Member-based > governance structures. It is important to examine and address, in > particular, WIPO's development mandate as a U.N. agency, as well as > specific practical measures that need to be taken, in terms of > governance, to ensure that the development dimension becomes an integral > element of WIPO's work programme in all areas of activity. > > 15. WIPO was established by the 1967 WIPO Convention as an independent > international organisation succeeding the Bureaux Internationaux reunis > pour la protection de la propriete intellectuelle (BIRPI) to "promote > the protection of intellectual property" and "ensure administrative > cooperation among the Unions". This objective was, however, explicitly > clarified by the 1974 Agreement between the United Nations and WIPO, > which established WIPO as a specialized agency of the U.N. family with > the responsibility for: > > [T]aking appropriate action in accordance with its basic > instruments, treaties and agreements administered by it, inter alia, for > promoting creative intellectual activity and for facilitating the > transfer of technology related to industrial property to the developing > countries in order to accelerate economic, social and cultural > development, subject to the competence and responsibilities of the > United Nations and its organs,… > > 16. While intellectual property protection may in particular > circumstances promote creativity and innovation, it is neither the only > way nor necessarily the most efficient or appropriate means for doing so > at all times and in all sectors of the economy. Similarly, it is highly > questionable that upward harmonization of intellectual property laws, > leading to more stringent standards of protection in all countries, > irrespective of their levels of development, should be pursued as an end > in itself. WIPO must, as a matter of course, examine and address all > features of existing intellectual property rights, including the > economic and social costs that IP protection may impose on developing > and least developed countries, as well as on consumers of knowledge and > technology in both the North and the South. WIPO, moreover, must be > open to, and actively consider, alternative non-intellectual > property-type systems for fostering creativity, innovation and the > transfer of technology, while recognizing the benefits and costs of each > system. Higher standards of protection should be undertaken only when it > is clearly necessary and appropriate for the promotion of creativity and > the transfer of technology, and where the benefits outweigh the costs of > protection. Indeed, paragraph 2 of the Preamble to the WIPO Convention, > as formulated in 1967, recognized that intellectual property is not an > end in itself but should only be used if it promotes creativity. As a > matter of fact, given the cross-cutting implications of IP protection, > as pointed out above, any attempts to pursue upward harmonization of > intellectual property protection, without proper consideration of the > potential costs of such initiatives for developing countries and LDCs, > as well as for consumers and the public at large, would be at odds with > WIPO's U.N. mandate. > > 17. Furthermore, WIPO should undertake its activities, especially > legal-technical and technical assistance with a development focus, based > on the 1995 Agreement between WIPO and the World Trade Organization > (WTO) with respect to the implementation of the TRIPS Agreement. Under > Article 4 of that Agreement, the International Bureau of WIPO and the > WTO Secretariat are required to cooperate in matters of legal-technical > and technical assistance "so as to maximize the usefulness of those > activities". In the context of TRIPS, legal-technical and technical > assistance activities have to ensure that the developing and least > developed countries are able to implement the pro-development provisions > of the TRIPS Agreement, for example, Articles 7, 8, 30, 31 and 40, in > addition to subsequent pro-development decisions, such as the Doha > Declaration on the TRIPS Agreement and Public Health. > > 18. In spite of the terms of the 1974 Agreement between the U.N. and > WIPO, ambiguities and misunderstandings regarding WIPO's mandate have, > for various reasons, persisted over the years. The 1967 WIPO Convention > has often been invoked by some to justify attempts to launch > negotiations on the upward harmonization of intellectual property laws > without a proper, comprehensive and fair consideration of the potential > implications and costs of such initiatives for developing countries and > LDCs. At other times, some have suggested that the WIPO Convention > prohibits the Organization from examining issues such as the control of > anticompetitive practices, transfer of technology, limitations and > exceptions to intellectual property rights and the protection and > enhancement of the public domain. All such restrictive interpretations > of WIPO's mandate would seem to run counter to WIPO's role and mandate > as a U.N. agency. In effect, given the clear cross-cutting implications > of IP for vital areas of public policy, in particular for developing > countries and LDCs, such narrow interpretations of WIPO's mandate and > mission are not desirable. > > 19. Several factors may have impeded effective implementation of the > Organization's development mandate in the past. Frequently, there has > appeared to be a misconception that the development dimension of > intellectual property is the same thing as technical assistance and that > technical assistance should be provided as a means for enhancing > enforcement measures in receiving countries. At other times, the > Organization may have lacked clear guidelines from the Member States on > how development should be placed at the core of WIPO programmes and > activities. This should be remedied by a debate on the subject in the > next meeting concerning the Development Agenda. It would be particularly > important to mainstream the development dimension into all of WIPO's > substantive and technical assistance activities and debates, including > the way in which the Organization deals with "enforcement" issues. The > objective would be to safeguard in all negotiations the development > oriented principles and flexibilities contained in existing Agreements, > such as Article 1 of TRIPS, which gives members the freedom to > "determine the appropriate method of implementing the provisions of this > [the] Agreement within their own legal system and practices", as well as > Article 41.5 which establishes in regards of enforcement that nothing > creates "any obligation to put in place a judicial system for the > enforcement of intellectual property rights distinct from that for the > enforcement of law in general". In that light, it is also important to > maintain the mandate of WIPO's Advisory Committee on Enforcement within > the limits of a forum for exchange of information. > > II.1 (a) Bringing the WIPO Convention in Line with the Organization's > U.N. Mandate > > 20. As pointed out in Document WO/GA/31/11, one could make WIPO's > mandate clearer by means of an amendment to the 1967 WIPO Agreement that > would unequivocally inscribe the "development dimension" as an essential > element of the Organization's work program. One option is to amend the > Convention as indicated in the Appendix to document WO/GA/31/11. The > timing and convenience of initiating such negotiations should be > properly considered by by all Member States in the IIM on the > Development Agenda. > > II.1(b) The Misconception that the Development Dimension Means Technical > Assistance > > 21. The proposal on a Development Agenda for WIPO is broad and > horizontal in nature and strives to address WIPO's work in all its > dimensions. In particular, it is critical to clarify that the > development dimension of intellectual property is NOT the same thing as > technical assistance. While technical assistance has a role to play in > ensuring that the implementation of intellectual property rules is > development-sensitive, the development dimension in intellectual > property means that, inter alia: > > (a) With respect to norm-setting relating to intellectual property, > new subjects and areas for such norm-setting should be identified based > on clearly defined principles and guidelines and on an assessment of > their development impact. Differing levels of technological, economic > and social development should be recognized, and flexibilities and > "policy space" for the pursuit of public policy goals should be > safeguarded. > (b) WIPO should be open to examining non-intellectual property-type > and/or non-exclusionary systems for fostering creativity, innovation and > the transfer of technology, for example, open collaborative models for > research, open and free software development, and compensatory liability > systems and the development of technology for the public good, while > recognizing the benefits and costs of each system. > (c) Specific measures should be undertaken to facilitate the transfer > of technology to developing countries and the contribution of such > technology transfer to their economic, social and cultural development > should be continuously measured, monitored and evaluated. > (d) Technical assistance should be demand-driven in the sense that it > corresponds to the needs and global political objectives of developing > and least developed countries, taking also into account the legitimate > interests of various stakeholders and not only those of rightholders. > Furthermore, the design, delivery and evaluation of technical assistance > should be based on clear principles and there should be open and > transparent guidelines relating to (1) the separation of the rule-making > and technical assistance functions of the WIPO Secretariat, (2) > transparency in technical assistance programmes, to be ensured by, for > example, making publicly available the roster of consultants, publishing > the exact amounts spent on technical assistance in specific countries > and on specific activities, and establishing a code of conduct for the > Secretariat staff and consultants, and (3) the use of development > indicators to assess the results of technical assistance. > > 22. Due to the cross-cutting nature of the issues relating to the > development dimension of intellectual property, the Development Agenda > should be pursued in all areas of WIPO's activities, including in the > work of all standing committees and other subsidiary bodies. The > proposal for a Development Agenda, due to its broad and horizontal > nature, cannot be limited to or contained within the work of any > specific subsidiary body within WIPO. All WIPO bodies are expected to > contribute to the realization of the development dimension. In this > regard, it is important to reiterate that while the Permanent Committee > on Cooperation for Development Related to Intellectual Property (PCIPD) > may be tasked by the General Assembly with some activities, it cannot be > the forum for addressing the proposals contained in document WO/GA/31/11. > > II.1(c) Guidelines on Incorporating the Development Dimension into WIPO > Programmes and Activities > > 23. As already noted, one of the possible impediments to ensuring the > full implementation of WIPO's development mandate may have been lack of > clear guidance from the Member States on how development should be > placed at the core of WIPO programmes and activities. It is therefore > important that Member States develop clear principles and guidelines on > the basis of which the development dimension of the Organization's work > can be measured. In this regard, this submission proposes specific > guidelines and principles with respect to norm-setting, technical > assistance and technology transfer. > > II.2 STRENGTHENING THE ROLE OF MEMBER-DRIVEN STRUCTURES TO ENSURE THE > EFFECTIVE IMPLEMENTATION OF WIPO'S DEVELOPMENT MANDATE > > 24. The governance and oversight structures of the Organization need > to be adequate and properly balanced to ensure the implementation of the > mandate, and in particular, that the Organization, and consequently the > Secretariat, performs its functions properly. The current governance and > oversight structures of WIPO need to be examined and recommendations > could be made on how to improve them. > > 25. As an international multilateral organization, WIPO should operate > in a member-driven manner. The Secretariat is guided by the instructions > of the General Assembly regarding both the internal and external affairs > of the Organization. Each Member State bears a special responsibility to > ensure this. For example, formal and informal meetings or consultations > held between Members or organized by the International Bureau upon > request of the Member States should be held in Geneva, in an open and > transparent manner that involves all interested Members States. > > 26. Some concerns and misunderstandings have been expressed, in the > past, with regard to WIPO's nature as an institution, due to its funding > structure. The activities of WIPO and the International Bureau are > financed by income from four main sources, namely, contributions by > Member States, fees paid by private sector users of WIPO's global > protection systems (PCT, Madrid, Hague and Lisbon Systems), the sale of > WIPO's publications and from interest earnings. In 2002, for example, > approximately 86 percent of WIPO's total funding came from fees. This > situation has led some actors to argue that WIPO should be more > responsive to the interests of the rightholders that use the global > protection systems and their associations, since the Organization > appears to have become "dependent" on them for financing. This line of > reasoning is not compatible with WIPO's intergovernmental nature. > Additionally, it is not conducive to a development sensitive > Organization that should cater to a multistakeholder constituency of all > members countries. > > 27. In fact, WIPO's existence is not dependent on rightholders, and > rightholders do not "fund" WIPO. WIPO as an international > intergovernmental organization is answerable to its Member States and > its existence depends on its Members only. The global protection systems > which contribute significantly to WIPO's income are systems that have > been created by Member States. Rightholders must not loose sight of the > central role played by Member States in the establishment of these > services. Consequently, as much as the International Bureau should > strive to provide efficient services as mandated by Members, payment for > those services by rightholders should in no way provide a basis for > anyone to claim that the users of those protection systems have the > right to determine the agenda or priorities of the Organization, or even > the manner in which the incomes of the Organization are to be allocated > under its Programme and Budget. WIPO must remain a Member-driven > Organization, where the role of the Secretariat is focused on > facilitating the work of the Members and implementing decisions and > instructions received from Member States. > > II.2 (a) Establishing an Independent Evaluation and Research Office > > 28. In order to strengthen the oversight function of Members, as well > as the quality and cost-effectiveness of the Organization's > modus-operandi one should consider establishing an independent > evaluation and research office called the WIPO Evaluation and Research > Office (WERO), which would report to the General Assembly. The Head of > the Office would be vetted and approved by the General Assembly and > appointed for a fixed term after which time such a person may not be > employed in the WIPO Secretariat. Similar conditions may also apply to > the staff of WERO. The Office would have unrestricted access to all WIPO > documents and the results of the its research and recommendations would > be fed back into the on-going and subsequent WIPO programmes and > activities, including with respect to norm-setting. > > 29. Such an Office would provide a transparent, independent and > objective mechanism, vis-à-vis the General Assembly, the WIPO > Secretariat and all interested stakeholders, through which WIPO's > programmes and activities would be evaluated with respect to their > development impact in general, and their impact on innovation, > creativity and access to, and dissemination of knowledge and technology. > Its creation would not only have the effect of enhancing the credibility > of WIPO and its programmes but would also be in line with established > international practice. The World Bank Group, the International Monetary > Fund (IMF), the European Investment Bank, the United Nations Development > Programme (UNDP), among other international institutions, already have > similar mechanisms. > > 30. WERO should provide enhanced coordination both inside and outside > of WIPO as well as be mandated to present annual reports of its work, > research and findings to the General Assembly. Its functions could > include: evaluation of all WIPO programmes and activities with respect > to their development impact in general and their impact on innovation, > creativity and access to and dissemination of knowledge and technology; > carrying out "Development Impact Assessments" with respect to proposed > norm-setting activities in WIPO, as well as impact assessments and > research on existing WIPO administered treaties; avoidance of > duplication of costs and actions; the promotion of greater > cost-efficiency; monitoring and evaluating the design, delivery and > implementation of WIPO legal-technical and technical assistance > activities based on the principles and guidelines established by the > General Assembly and taking into account best practices from other > providers of technical assistance; and monitoring and evaluating WIPO's > policies and processes more generally. The foregoing list is meant to be > merely indicative. It is clear that the possible role and functions of > such an independent evaluation unit would have to be carefully examined > and discussed by Member States. The idea of establishing WERO should be > examined in detail during the next session of the General Assembly, in > September of 2005. > > II.3 TRANSPARENCY AND INCLUSION: FACILITATING THE PARTICIPATION OF > PUBLIC INTEREST GROUPS IN WIPO PROCESSES. > > 31. Intellectual property law and policy as well as other regulatory > regimes relating to innovation and transfer of technology have > implications beyond the regulation of monopoly rights over inventions, > copyrights, trademarks and other related subject matter. They impact on > a much wider range of issues from access to education and learning > materials to the availability and affordability of essential medicines > as well on the efforts to bridge the digital divide and the > technological gap. When rules and standards touch upon such fundamental > issues, they cannot be formulated in accordance only with the expertise > and concerns of specialized IP lawyers and rightholders groups. > > 32. Openness of WIPO discussions and decisions and the participation > of public interest groups in discussions on an equal footing with > rightholders' associations must be sought. WIPO must take into account > in all its key policy and technical committees the interests of the > consumers, the public at large and those of rightholders. In this > context, among other issues, the role and relevance of the Policy > Advisory Commission (PAC) and the Industry Advisory Commission (IAC) > should merit re-evaluation. > > 33. The PAC and the IAC were established in 1998. According to the > memorandum of the Director General to 40th series of the Assemblies of > the Member States of WIPO in September/October 2004, the mandate of the > PAC is to "provide objective and informed external advice to the > Director General, particularly with respect to policy-making, > medium-term planning, processes and the needs of the market sector". The > IAC, on the other hand, was established for the purposes of ensuring > that the "voice of the market sector is heard and that the Organization > is responsive to its [market sector] needs" and ensure that there is "a > direct input of industry into the policy-making process in WIPO". > > 34. While the role of the PAC and the IAC are purely advisory, the > emphasis on the role of industry and the "market sector" has raised > concerns among other stakeholders about the preponderant participation > of industry vis-à-vis public interest groups in WIPO. It is important to > ensure that these advisory bodies whose membership is not determined or > vetted by Members States do not unduly influence the manner in which the > Organisation determines its priorities or implements Member's decisions. > > II.4 OPERATIVE SUMMARY > > 35. To streamline the development dimension in WIPO's work programme and > ensure that WIPO's governance structures effectively promote the > application of the development dimension in all activities of the > Organization, it is proposed that: > > * Members States could consider the possibility of amending the WIPO > Convention (1967) to bring it in line with WIPO's mandate as a UN > specialized agency; > * Principles and guidelines should be formulated to govern WIPO's > operation, in all programme areas and activities; > * WIPO should operate as a Member-driven institution, where the role of > the Secretariat is limited to facilitating the work of the Members and > to implementing decisions and instructions received from Members; > * A WIPO Evaluation and Research Office (WERO) could be established, > which would operate independently of the WIPO Secretariat; > * Measures should be taken to ensure wider participation by civil > society and public interest groups in WIPO discussions and activities; > * Measures should be taken to ensure that the Membership and functions > of the Policy Advisory Commission (PAC) and the Industry Advisory > Commission (IAC) are determined by the Member States. > > III. PROMOTING PRO-DEVELOPMENT NORM-SETTING IN WIPO > > 36. Rapidly growing international intellectual property standards have > been placing unprecedented limits on the ability of developing countries > to tailor their intellectual property regimes to meet their economic, > social, and cultural needs, and have also imposed significant > implementation burdens. Challenges faced by Developing Countries in > "enforcement" of higher minimum international standards of protection > favouring right holders must be balanced by effective use and promotion > of flexibilities contained in the IP system, such as those of Articles > 1.1 and 41.5 of the TRIPS Agreement, which explicitly recognizes that > theses countries have retained the freedom to determine the appropriate > form of implementation of their obligations in the area of intellectual > property. > > 37. These standards have been designed and expanded with little > consideration for their actual costs and benefits to developing > countries. Norm-setting at the international level has been dominated > by a paradigm that regards intellectual property rights as the only and > unequivocally beneficial instrument to promote creative intellectual > activity. Increased scope and levels for intellectual property > protection thus often become ends in themselves in international > negotiations, which have failed to take into account the need to promote > and enhance access to knowledge and the results of innovation. > > 38. WIPO, as one of the principal international institutions > responsible for negotiating standards and norms to promote creative > intellectual activity and to facilitate transfer of technology, has a > significant role to play in ensuring that intellectual property rules > advance development objectives and bears a special responsibility in > overcoming current limitations in international norm-setting. Until now, > norm-setting in WIPO has focused on encouraging international agreements > solely designed to promote the protection of intellectual property. > Attempts by the International Bureau to launch initiatives such as the > WIPO Patent Agenda, as well as its active engagement in support of > treaties currently under negotiations, which do not respond to > development objectives or priorities of developing countries and are not > concerned with their access to the socio-economic and cultural benefits > of innovation and creativity, are cases in point. To rectify this > situation, WIPO should pursue a more balanced and comprehensive approach > to norm-setting, emphasizing the design and negotiation of rules and > standards that are guided by and fully address the development > objectives and concerns of developing and least developed countries and > of the international community. > > 39. Discussion on the Establishment of a Development Agenda for WIPO > in the 2004 WIPO General Assembly reflected broad agreement among WIPO > Member States on the need to enhance and mainstream the development > dimension in WIPO activities, including norm-setting. The challenge, as > pointed out by some Member States, is now determining how norm-setting > and other activities within WIPO can effectively incorporate development > objectives and concerns. This section of the present submission > therefore identifies and elaborates on a number of principles and > guidelines that, applied to the various substantive norm-setting > activities in WIPO, would foster an inclusive and pro-development > approach to negotiations. The submission also proposes several > mechanisms for implementing these principles and guidelines in WIPO in > the context of the Establishment of a Development Agenda for the > Organization. > > III.1 PRINCIPLES AND GUIDELINES FOR NORM-SETTING IN WIPO > > 40. Elaborating rules that effectively promote development and > creative intellectual activity requires an adequate framework for > negotiations and other WIPO norm-setting activities. Identifying > interests behind norm-setting initiatives, assessing the costs and > benefits of those initiatives in terms of sustainable development, > promoting a balance between protection and dissemination of knowledge > and the interests of developed and developing countries, fostering the > participation of a broad range of stakeholders, and supporting the > compatibility with broader international objectives and commitments > constitute, in this regard, concrete and significant steps that can be > taken in the context of WIPO norm-setting activities to ensure their > outcome reflects development needs and concerns. > > 41. We should reassess the norm-setting process at WIPO with a view to > guaranteeing that the development dimension is part of that process. As > a result, a number of principles and guidelines should apply broadly to > all WIPO norm-setting activities, including initiatives to implement or > modify current international intellectual property standards and to > develop new treaties. Such guidelines and procedures have also been > agreed to, for example, in the context of the World Trade Organization > (WTO) to determine the objectives, scope, and modalities of some > negotiations in that Organization. In this regard, possible guidelines > and procedures to direct norm-setting activities in WIPO should include: > > III.1 (a) Member-driven and Transparent Work Plan and Strategic vision, > as well as Individual Initiatives > 42. One of the obstacles for norm-setting initiatives in WIPO to > adequately respond to development objectives and concerns is the lack of > information about the short and long-term objectives of these > initiatives, as well as about their impact and the consequences of > various possible outcomes. The WIPO Secretariat has often played an > active role in norm-setting processes and in general there has not been > an adequate debate on the feasibility and desirability of new, expanded, > or modified rules. The points of view of developing and least developed > countries have been ignored in general and negotiations have been > launched without real consensus. > > 43. To ensure that the concerns of all WIPO Member States and relevant > stakeholders are appropriately addressed in norm-setting, the WIPO > Secretariat should not play a substantive negotiating role by endorsing > or supporting particular proposals for the implementation or development > of intellectual property rules or standards. On the contrary, the right > and burden should be on Member States to propose initiatives and > priorities for the work plan of WIPO and its different bodies, as well > as to provide a clear indication of the actual need for, as well as the > costs and benefits of the proposed norms, to enhance a balanced and > informed debate, as proposed below. > > III.1(b) Comprehensive Assessment and Justification in Terms of > Sustainable Development > > 44. Intellectual property protection is not an end in itself, but > rather a means to support public policy objectives such as economic, > social, and cultural well-being. Any development, implementation or > modification of international intellectual property rules should be > based on and respond to sustainable development needs and concerns. All > norm-setting activities in WIPO should be based on available empirical > evidence and on a cost-benefit analysis. Given that intellectual > property protection will generate different costs in different > circumstances, from implementation burdens to potential loss of public > policy space - from the economic, social, cultural, and environmental > perspectives -, its necessity and desirability vis-a-vis other > non-intellectual property-type and/or non-exclusionary options should be > thoroughly analyzed on a case-by-case basis. > > 45. Alternatives within and outside the intellectual property system > that would reach similar objectives with less monopoly of knowledge > should be particularly considered. For instance, the potential of open > access models for the promotion of innovation and creativity should be > explored as a feasible and desirable option in many contexts. Given > that the granting of exclusive rights frequently entail considerable > costs, particularly in terms of access to knowledge and essential goods > of crucial importance to social and economic development, any initiative > involving the creation of new or expanded intellectual property rights > should only be adopted if proven to be superior, in social and economic > terms, to solutions based on the creation of public goods. Indeed, > recognizing that current international intellectual property rules have > emphasized the protection of rights vis-a-vis the public domain, WIPO > should now actively seek ways to safeguard and promote the public domain > and the innovative and creative activities that depend on it. > > 46. As stated by the Commission on Intellectual Property Rights > established by the government of the United Kingdom, the questions to be > answered for each proposed norm-setting initiative include: How much > intellectual property protection is a good thing? How should it be > structured? Serious answers tot these questions shall be found to > promote compatibility between sustainable development and norm-setting > activities. > > III.1(c) Recognition of Different Levels of Technological, Economic and > Social Development > > 47. Another key issue to consider in norm-setting is the need to > balance the benefits and costs of any initiative between developed and > developing countries and, more generally, between the consumers and > producers/owners of proprietary technological knowledge. The design > and effectiveness of intellectual property as a tool for development has > proven to be directly related to prevailing socio-economic > circumstances, as becomes obvious when one considers the historical > record and the evolution of national intellectual property regimes, > particularly in the developed countries. As a result, the different > levels of development of Member States should be an inherent > consideration in WIPO norm-setting. Only an unambiguous recognition of > the need to gauge intellectual property rules according to differing > development needs and concerns, and thus of the need for a more > equitable distribution of the costs and gains of intellectual property > protection, can validate norm-setting activities in WIPO as being > balanced and inclusive of all its Member States. > > 48. Such an approach should be reflected in operative and substantial > special and differential treatment provisions for developing countries > and least developed countries. Moreover, a pro-development approach to > norm-setting should recognize sustainable development as its raison > d'etre: all international norms on intellectual property –not just a few > provisions in each instrument– should be designed to contribute to the > economic, social, and environmental welfare, especially of developing > and least developed countries, and to stimulate relevant innovation, > research, and technology, and promote access to knowledge. > > III.1(d) Recognition of the Rights of Different Stakeholder Groups and > the General Public as users of the Intellectual Property System > > 49. As the development dimension requires norm-setting in WIPO to > fully consider and take into account the needs and concerns of > developing and least developed countries, it also commands the > recognition of the rights of a wide range of stakeholders, all of which > constitute the true "users" of the intellectual property system. It is > not only the interests of owners of intellectual property that should be > contemplated and respected, but also those of society at large, as well > as the particularly vulnerable segments of the population. As noted by > Member States in the 2004 WIPO General Assembly, intellectual property > should strike a better balance between private rights and the public > interest. Nevertheless, in many norm-setting initiatives in WIPO, it is > solely the interests of those that seek new or increased intellectual > property rights that are considered. > > 50. In discussions currently taking place in the Standing Committee on > Copyright and Related Rights (SCCR), for instance, little consideration > has been given to the rights of performers, authors, educators, > students, consumers, and others who would be directly impacted by the > proposed new rules. Similarly, when future work in the area of patent > law harmonization was discussed during the Tenth Session of the Standing > Committee on the Law of Patents (SCP), only the approach of patent > holders was brought to the attention of Member States. A pro-development > approach to norm-setting in WIPO requires moving away from such a narrow > perception of the constituencies whose interests are at stake in respect > of intellectual property-related issues and fostering the consideration > of the rights and interests of a broad range of stakeholders, as well as > promoting their active and effective participation in WIPO's work. > > III.1(e) Compatibility with, and Support of the Objectives and > Provisions of other International Instruments > > 51. In order to fully incorporate the development dimension, > norm-setting in WIPO should not merely consider sustainable development > objectives in its processes and outcomes, but also ensure that these > processes and outcomes are fully compatible and actively support other > international instruments that reflect and advance those development > objectives. It is not only a matter of ensuring coherence; it is also > one of recognizing the purpose and inherent limitations of intellectual > property as an instrument of public policy and the fact that IP > protection cannot be seen as an objective or a value in itself. As a > result, for instance, under no circumstances can human rights – which > are inalienable and universal – be subordinated to intellectual property > protection. > > 52. Likewise, intellectual property must adequately support basic > rights and public policy objectives enshrined by the international > community, including the Millennium Development Goals (MDGs), the Plan > of Implementation of the World Summit on Sustainable Development, and > the Convention on Biological Diversity. In this regard, a critical > criterion in the analysis of the costs and benefits of norm-setting > initiatives should be ensuring that the proposed rules or standards are > supportive of these other international instruments and do not run > counter to their objectives. > > III.2 IMPLEMENTING PRO-DEVELOPMENT PRINCIPLES AND GUIDELINES IN WIPO > > 53. Recognition and application of the principles and guidelines > described above are essential to ensuring that the processes and > outcomes of all WIPO norm-setting activities promote a > development-oriented international intellectual property system. > Consequently, they should be incorporated without delay into both > binding and non-binding norm-setting activities, including initiatives > to implement or modify current international intellectual property > standards and to develop intellectual property rules in new fields. The > mechanisms to implement these principles include: > > (a) Undertaking independent, evidence-based "Development Impact > Assessment" (DIA) to consider the possible implications of each > norm-setting initiative for core sustainable development indicators such > as innovation, access by the public to knowledge and products, job > creation, poverty alleviation, equity, respect for cultural diversity, > protection of biodiversity, health, and education, particularly in > developing and least developed countries. Such an independent > evaluation could be carried out by the proposed WIPO Evaluation and > Research Office (WERO) with the effective participation and engagement > of a broad range of key stakeholders. As part of the DIA process, a > cost-benefit evaluation should also be requested from other relevant > international organizations and bodies, including the United Nations > Conference on Trade and Development (UNCTAD), the Food and Agriculture > Organization (FAO), the World Bank, the World Health Organization (WHO), > the South Centre, and the Commission on Human Rights. In particular, > DIAs could be: > * conducted in a staged manner, including through both preliminary and > advanced DIAs as the norm-setting activities are proposed and take place; > * performed through a consideration of the proposed norms and the > different policy scenarios, as well as their impact on several country > groups, including developed, developing, and least developed countries > and the world as a whole; > * focused not only on direct impacts, but also on indirect and > cumulative, impacts; > * carried out and executed with an emphasis on the relationship between > the proposed rules or standards and other international instruments, to > ensure they are compatible and support objectives, rights, and > flexibilities established by the international community in other fora. > In particular, rights or standards that surpass those established by the > WTO TRIPS Agreement should be exceptional. > (b) Incorporating provisions recognizing the difference between > developed and developing WIPO Member States in all norm-setting > initiatives. These provisions should aim to recognize the over-arching > objectives and principles of intellectual property protection, provide > longer compliance periods, promote transfer of technology, safeguard the > national implementation of intellectual property rules, suppress > anti-competitive practices, and generally ensure intellectual property > rules are a coherent part of broader development strategies. Provisions > such as these have already been proposed by developing countries in the > SCP for the draft Substantive Patent Law Treaty (SPLT). It is our > expectation that they will be agreed to by all WIPO Member States, in > the SCP and other WIPO subsidiary bodies; > (c) Holding public hearings prior to the initiation of any discussion > toward norm-setting in WIPO, with the broad participation of different > stakeholders, including other intergovernmental organizations, academia, > consumer groups, and other civil society organizations. Such > participation should continue and be promoted in the course of > norm-setting discussions and negotiations. > > IV. Principles and Guidelines for WIPO's Provision of Technical > Assistance and Evaluation > > 54. The proposal for the Establishment of a Development Agenda for > WIPO (WIPO document WO/GA/31/11) noted the central importance of WIPO in > the provision of intellectual property-related technical assistance and > capacity building. Apart from WIPO's own mandate, by virtue of the 1995 > Agreement between WIPO and the World Trade Organization (WTO), WIPO > plays an important role in the implementation of the TRIPS Agreement in > developing countries. Under Article 4 of that Agreement, WIPO and WTO > Secretariat are required to cooperate in matters of legal-technical and > technical assistance "so as to maximize the usefulness of those > activities". > > 55. In the context of the TRIPS Agreement, legal-technical and > technical assistance activities should mean implementing its provisions, > including the pro-development ones, such as Articles 7, 8, 13, 30, 31 > and 40, as well as subsequent pro-development decisions such as the Doha > Declaration on the TRIPS Agreement and Public Health, in a manner > responsive to the development needs and aspirations of individual > countries. > > 56. While WIPO has made significant strides in providing developing > countries with technical assistance, more needs to be done to ensure > that such assistance is useful to development objectives. At the same > time, WIPO's technical assistance has come under criticism from various > quarters including independent bodies such as the U.K Commission on > Intellectual Property Rights, which in its report in 2002 characterized > WIPO's technical assistance as too often planned and delivered in > isolation from development goals of developing countries. > > 57. It is clear that for WIPO's technical assistance to be of value to > developing and least developed countries, such assistance needs to be > planned and delivered based on transparent principles and guidelines on > the basis of which an objective assessment of its impact and > effectiveness can be made. Principles and guidelines established by the > Member States will provide a much needed road map for the expansion and > qualitative improvement of WIPO's technical assistance. This document > elaborates on the possible principles and guidelines for the provision > of technical assistance by WIPO and on the mechanisms for implementing > the principles and guidelines. > > IV.1 CONCERNS OVER THE PROVISION OF INTELLECTUAL PROPERTY TECHNICAL > ASSISTANCE > > 58. Technical assistance in many ways is a service to promote and > enhance coherent policy formulation, review and legislative reform. As > developing countries continue to implement intellectual property-related > treaties, such as the TRIPS Agreement, WIPO administrated treaties and > to participate in new negotiations at the multilateral, regional and > bilateral level, appropriate and effective technical assistance and > capacity building will be crucial if these countries are to use > intellectual property and other tools for fostering creativity and > technological development effectively in the pursuit of their > development goals. > > 59. The type of intellectual property technical assistance that has > been provided in the last decades, as already noted, has raised a series > of concerns. These concerns relate to the underlying philosophy, content > and process of the technical assistance provision. The most important > concerns raised by various stakeholders and the wider literature on > intellectual property technical assistance include the following: > > * intellectual property may often be seen as an objective in itself. > Broader policy concerns such as science and innovation policies, > technology transfer, access to technological goods and enhanced > competition have been addressed in a very limited manner; > * solutions to the technical and capacity constraints tend to be > identified and designed by the providers and not by the beneficiaries of > the assistance; > * there is a tendency to over-emphasize the benefits of intellectual > property while giving very little attention to the limitations and > actual costs; > * the content of the technical assistance programmes has mostly focused > on the implementation and enforcement of obligations and not on the use > of in-built rights and flexibilities in international treaties for > developing countries; > * little attention has been given to different levels of development and > cultural differences; > * there is insufficient suport for local input and capacity building > when identifying solutions that are specific to the respective country > and its economic structure; > * assistance is mostly targeted to a limited group of beneficiaries > (mostly intellectual property offices and certain business groups); > * the widespread provision, over a number of decades, of model laws to > developing countries without sufficient or any accompanying advice on > the trade and development effects of these laws and full analysis of the > evidence regarding economic effects; and > * There has been little independent evaluation of the technical > assistance provided by WIPO, including to determine the impact and > effectiveness of the assistance programmes. > > 60. With a view to addressing the above concerns and the inherent > urgency of making good use of the limited resources allocated to > intellectual property technical assistance in WIPO, there is need to > establish a set of international principles to improve the quality of > technical assistance and to adopt guidelines for the design, delivery > and implementation as well as evaluation of technical assistance > provided by WIPO including in the context of the 1995 Agreement between > WIPO and the WTO. > > IV.2 PRINCIPLES AND GUIDELINES FOR THE PROVISION OF TECHNICAL ASSISTANCE > > 61. In order for WIPO's technical assistance to be useful in the > long-term, and for there to be a basis for objective review and > improvement, the Organization's activities and programmes in this field > should be guided by pre-agreed principles and guidelines. Among others, > the principles and guidelines could include: > > IV.2(a) Development Focused Technical Assistance > > 62. The provision of technical assistance should have as its > objectives the fulfillment of the development goals of the recipient > countries and broader development goals such as the United Nations > Millennium Development Goals (MDGs). In designing, delivering and > evaluating technical assistance, the different levels of development of > various countries should be taken into account. > > IV.2 (b)Comprehensive and Coherent Assistance Programmes > > 63. Special attention shall be paid to developing the technical > capacity of countries to fully use in-built flexibilities in > international agreements to advance national pro-development policies. > Coherence and mutual supportiveness with other relevant international > instruments must also be promoted. The use of model intellectual > property laws without careful evaluation of their effects should be > discouraged. > > IV.2 (c) Integrated Approach > > 64. The intellectual property system cannot work in isolation from > competition policy and other related regulatory regimes. In designing > technical assistance programmes, there is a need to expand its coverage > to include matters related to the use of competition law and policy to > address abuses of intellectual property and practices that unduly > restrain trade and the transfer and dissemination of technology. > > IV.2(d) Neutral, Unbiased and Non-Discriminatory > > 65. The provision of technical assistance should be neutral and of > advisory nature based on actual and expressed needs. The assistance > should not discriminate among recipients or issues to be addressed and > should not be perceived as being a reward system for supporting certain > positions in WIPO negotiations. > > IV.2(e) Tailor-made and Demand-driven > > 66. The technical assistance programmes and activities should ensure > that intellectual property laws and regulations are tailored to meet > each country's level of development and are fully responsive to the > specific needs and problems of individual societies. The assistance > should correspond to the needs of various stakeholders in developing and > least developed countries and not just the intellectual property offices > and rightholders. > > IV.2(f) Independence of Providers > > 67. WIPO technical assistance staff and consultants should be fully > independent and potential conflicts of interest should be avoided. > > IV.2(g) Continuous Evaluation as to Effectiveness > > 68. WIPO's technical assistance programmes and activities should be > continuously evaluated both internally and independently to ensure its > effectiveness. > > IV.2(h) Transparency > > 69. All information about design, delivery, cost, financing, > beneficiaries and implementation of technical assistance programmes as > well as the results of internal and external independent evaluation > should be publicly available. > > IV.3 MECHANISMS FOR THE IMPLEMENTATION OF PRO-DEVELOPMENT TECHNICAL > ASSISTANCE > > 70. The adoption of principles and guidelines on technical assistance > will not by itself improve the effectiveness of the technical assistance > programmes if concrete mechanisms are not set up to implement and > monitor the adherence to these principles and guidelines. In order to > implement the above principles and guidelines, a number of measures > therefore need to be undertaken. Among others, these could include: > > IV.3(a) Adoption of the Principles and Guidelines by the 2005 WIPO > General Assembly > > 71. The principles and guidelines elaborated above should be adopted > by the next WIPO General Assembly in September/October 2005 and should > form the basis for all future WIPO technical assistance and capacity > building. > > IV.3(b) Establishment of Databases and Dedicated Webpage to Improve > Information sharing > > 72. There is a need to improve information sharing by using existing > resources including databases on technical cooperation by major donors > and providers. A web page with all technical assistance information > provided by WIPO and other relevant international organizations and > donors could be created to enhance transparency and allow for objective > monitoring processes. A permanent notification system could assist in > keeping such a system operative and updated. Whenever a country requests > WIPO's assistance, WIPO could, by means of the website notify Members > and other interested parties including observers that its assistance has > been sought and where models, drafts etc. are suggested, these should > also be publicly available. > > IV.3 (c) Defining and Separating the Functions of the WIPO Secretariat > > 73. Exploratory work should be undertaken to analyze options for > separating norm-setting functions from technical assistance functions of > the WIPO Secretariat. Two possibilities, among others, could be > considered. One option could be for the General Assembly to merge most > of the functions of the Economic Development Sector with those of the > WIPO World Wide Academy (WWA) and set up a semi-independent arm for > research, technical assistance and capacity building. While such a > structure could still remain part of the WIPO Secretariat, under the > Director General, an independent advisory panel appointed by the General > Assembly could be constituted to internally evaluate the performance of > technical assistance programmes, monitor the adherence to the proposed > principles and guidelines and help set priorities for research and > assistance. > > 74. Alternatively, a wholly independent entity, not part of the WIPO > Secretariat, but funded by WIPO, could be established along the model of > the Advisory Centre on WTO Law (ACWL). The managing board of such an > independent entity could be drawn from the WIPO Secretariat, UNCTAD, > UNDP, UNESCO, UNIDO, WTO, WHO and FAO as well as other international > organisations with expertise in development and intellectual property. > The board could also have representation from industry and from consumer > and public interest groups. > > 75. Whichever approach is taken, the technical assistance activities > of WIPO could at any rate be subject to the independent evaluation and > monitoring of the proposed WIPO Evaluation and Research Office (WERO). > We have provided the details on the operation and possible functions of > WERO in the section on the mandate and governance of WIPO. > > IV.3(d) Establishment of a Code of Ethics and Assuring independence of > Consultants > > 76. Consideration should be given to developing an ethics code for the > Secretariat's technical assistance staff and consultants to ensure the > highest level of professionalism and neutrality. Such a code of ethics > could also be useful to protect the staff and consultants from undue > influence and/or harassment. In addition, the roster of consultants for > technical assistance should be available to the public. The selection > process for consultants should look at potential conflicts of interest > in relation to parallel public or private activities as well as ethical > behavior. > > IV.3(e) Development of Indicators and Benchmarks for Evaluation > > 77. A process for identifying relevant indicators and benchmarks for > evaluating the Organization's technical assistance activities should be > commenced as soon as possible. UNCTAD, the World Bank and other > international organizations could provide inputs in the identification > of relevant indicators. > > V. GUIDELINES FOR FUTURE WORK ON TRANSFER AND DISSEMINATION OF > TECHNOLOGY AND RELATED COMPETITION POLICIES > > 78. Transfer of technology is a comprehensive term covering mechanisms > for transmitting technical information across borders and its effective > diffusion into the host economy. It refers to numerous complex > processes, ranging from innovation and international marketing of > technology to its absorption and imitation. Transfer of technology may > be realized through formal –market- as well as informal –non-market- > means. A formal or market mechanism is a commercial transaction, based > on a legal arrangement between consenting parties. It includes, in the > main, trade in goods, foreign direct investment (FDI), licensing, joint > research and development (R&D) arrangements. > > 79. There are also important legitimate informal, non-market channels > of transfer of technology. Perhaps most significant is the process of > imitation through product inspection, reverse engineering, decompilation > of software, and even simple trial and error. Another means is to study > available information about new technologies. Patent applications are > available for this purpose. Thus, patents are expected to provide both > a direct source of technology transfer, through FDI and licensing, and > an indirect form through inspection. To play this role, patent > disclosures need to provide sufficient information for engineers to > understand the technologies. > > 80. In brief, under these various mechanisms, intellectual property > protection can play a role but not a unique role, for transfer and > dissemination of technology. The TRIPS Agreement recognizes precisely > that the transfer and dissemination of technology should be a > fundamental objective of the global intellectual property system. > Moreover, under Article 1 of the Agreement between WIPO and the United > Nations (1974), WIPO is recognized as a specialized agency with the > responsibility for taking appropriate measures for facilitating transfer > of technology related to industrial property to developing countries in > order to accelerate economic, social and cultural development. > > 81. Even in the case of formal technology transfers that occur mainly > in voluntary transactions, it has been recognized that this process > often does not work as intended and that the unwillingness to transfer > technologies might pose a competitive threat. In fact, it is frequently > the case that IP right holders choose to exercise the monopoly rights > conferred by patents and other forms of intellectual property in a > manner that runs counter to the purported principles and objectives of > the IP system, including the transfer and dissemination of technology. > Policies are thus needed to rectify this situation, by removing > impediments to the transfer and dissemination of knowledge and to lower > the costs and risks of technology acquisition. > > 82. As proposed in document WO/GA/31/11, the development dimension of > intellectual property policy requires that WIPO, through a dedicated > process, explore the type of policies, initiatives and reforms necessary > to contribute to the transfer and dissemination of technology to the > benefit of all countries. Such work is in fact indispensable if WIPO is > to fulfill the second part of its U.N mandate which confers WIPO with > the responsibility of taking appropriate action for "facilitating the > transfer of technology". This submission therefore elaborates on how > such a process could be undertaken in WIPO and suggests possible > guidelines and approaches for a future programme on transfer of > technology-related matters in WIPO. > > V.1 PRO-DEVELOPMENT APPROACHES TO TRANSFER AND DISSEMINATION OF TECHNOLOGY > > 83. The issue of transfer of technology to developing countries is not > new. It has been in the international agenda for decades. However, > drawing on the lessons of the past and a better understanding of the > process, a pro-development approach to this subject is called for. To > this end, this section of the submission reviews, first, possible > mechanisms that developed countries might promote to facilitate the > transfer and dissemination of technology to developing countries. > Secondly, the paper explores, in a non-exhaustive manner, possible new > initiatives at the multilateral level that could contribute to this > endeavor. It, finally, concludes with some observations on the role of > competition policies in this area. > > V.2 INTELLECTUAL PROPERTY POLICIES AND STANDARDS > > 84. Historically, the intellectual property system has included > elements that are supportive of efforts to promote technology transfer > and follow-on innovation, effective mostly under circumstances > prevailing in the developing countries. Patents, trade secrets, > copyrights, and trademarks, however, can hamper or create impediments to > tech-transfer, particularly when considered through the perspective of > technology flows from Developed to Developing countries, i.e. from > technology producer nations to technology consumer nations. Therefore > attention should be paid to a number of intellectual property specific > instruments that while effectively recognizing the rights of inventors > and creators across the board, produces very unbalanced results in terms > of encouraging transfer of technology to developing countries and the > establishment of functional national innovation systems in their > respective national jurisdictions. > > 85. From this perspective a more dynamic approach to transfer and > dissemination of technology, for the benefit of developing and least > developed countries, should incorporate, among others, appropriate > policies with respect to: > * protection criteria (e.g. patentability); > * duration of rights beyond a reasonable time to justify rewarding > innovation and creativity; > * exceptions to exclusive rights; > * use of public tools (e.g. disclosure and working requirements, > compulsory licensing, open source software); > * system of protection relevant to national circumstances; > * administrative and procedural aspects. > > 86. The above listing, although illustrative, covers a whole range of > technical issues that could not be exhaustively covered in this paper. > What follows is, however, indicative of what could be done in the > context of the Development Agenda. > > V.2(a) Supportive IP-related Policies by Industrialized Countries > > 87. With a view to promoting transfer and dissemination of technology, > among other related objectives, WIPO should contribute to a debate with > other relevant international organizations, as appropriate, on such > initiatives as an undertaking by developed countries to provide: > * technical and financial assistance for improving the ability of > countries to absorb technology; > * fiscal benefits to firms transferring technologies to developing > countries of the same type often available in developed countries for > firms that transfer technologies to nationally less developed regions; > * same tax advantages for R&D performed abroad as for R&D done at home. > For example, to meet the terms of Article 66.2, TRIPS, there might be > somewhat greater advantages offered for R&D performed in developing > countries; > * fiscal incentives to encourage enterprises to train scientific, > engineering and management graduates from developing countries, with a > view to their knowledge being used for development of technology in > their country of origin; > * public resources, such as those from the National Science Foundation > or National Institutes for Health in the United States, could be used to > support research into the technology development and technology transfer > needs of developing countries; > * grant programs could be established for research into technologies > that would be of greatest productivity for the purpose of meeting > priority social needs of developing countries. Technologies developed > under such programs could be made publicly available, specially those > funded through public resources; > * grant programs could be devised that offer support to proposals that > meaningfully involve research teams in developing countries, in > partnership with research groups in donor countries; > * Universities should be encouraged to recruit and train students from > developing countries in science, technology, and management. Incentives > for setting up degree programs through distance learning or even foreign > establishments may be particularly effective; > * Special trust funds for the training of scientific and technical > personnel, for facilitating the transfer of technologies that are > particularly sensitive for the provision of public goods, and for > encouraging research in developing countries. > > V.2(b) Multilateral supportive Measures > > 88. At the multilateral level, the following initiatives could be > considered: > * Adoption of commitments like those contained in Article 66.2 of the > TRIPS Agreement, expanded to benefit all developing countries; > * the establishment of a special fee on applications through the Patent > Cooperation Treaty, the revenues of which would be earmarked for the > promotion of research and development (R&D) activities in the developing > and least developed countries; > * the establishment of an intermediary conduit to reduce the asymmetric > information problem in private transactions between technology buyers > and sellers, for knowledge about successful technology-acquisition > programs that have been undertaken by national and sub-national > governments in the past. It could serve a useful role in encouraging > collaboration and information sharing among member governments. Such > programme could involve, for example, detailed information about past > policies and effective partnerships between agencies and domestic firms > in acquiring technologies and the terms involved, such as royalty rates > and contract clauses that resulted in actual local absorption. They > could also describe the most effective roles for public research > facilities and universities in facilitating technology transfer. Once > enough information of this type has been compiled and studied, it could > attempt to develop a model technology transfer contract that could serve > as a guideline for transfer of technology and would represent the > legitimate interests of both buyers and sellers; > * A multilateral agreement where signatories would place into the public > domain, or find other means of sharing at modest cost, the results of > largely publicly funded research. The idea is to set out a mechanism for > increasing the international flow of technical information, especially > to developing countries, through expansion of the public domain in > scientific and technological information, safeguarding, in particular, > the public nature of information that is publicly developed and funded > without unduly restricting private rights in commercial technologies. > > V.3 COMPETITION POLICIES > > 89. Exploitation of intellectual property rights could give rise to > anticompetitive behaviour, whether by individual firms or by concerted > practices or agreement among firms. An adequate definition and > implementation of public policies to deal with this problem represents > one of the most important criteria for the efficient functioning of any > intellectual property system and thus to the enhancement of the transfer > and dissemination of technology. A pro-competitive intellectual > property system needs to incorporate appropriate competition policies, > among others, to prevent the abuse of intellectual property rights, the > resort to practices that unreasonable restrain trade or adversely affect > the international transfer of technology. > > 90. However, relationships between intellectual property rights and > their potential abuse in technology markets are complex and require > considerable expertise in diagnosis and treatment. Moreover, the scope > for abusing intellectual property rights depends on the competitive > nature of distribution markets and entry possibilities. To rely on this > avenue for enhancing transfer of technology may require a broad policy > approach to expanding dynamic competition. Work in this area should not > be alien to the pursuit of a Development Agenda in WIPO. > > 91. Intellectual property laws aim at conferring exclusive rights on > individuals to enable owners to appropriate the full market value of the > protected subject matter. By promising that the intellectual property > holder may obtain a full reward from the market, intellectual property > rights may serve as an incentive for the creation, use and exploitation > of inventions, works, marks and designs. > > 92. However, it is often the case that intellectual property owners > exploit their legal rights to unreasonably block competition. They may > do this, for example, by exploiting the unique characteristics of > certain protected products that prevent rival firms from developing > alternative products or entering certain markets, and refusing to grant > licenses to prospective competitors. While the traditional problems of > technology transfer in hardware industries persist, new problems have > arisen in the service industries, and practices other than those > relating to licensing have become more important, in particular in > regard to foreign direct investment, cooperation agreements, > outsourcing, standardization, interconnection, and access to information. > > 93. Three types of conflicts may arise between the pursuit of > competitiveness and intellectual property rights. First, intellectual > property may be used contrary to the objectives and conditions of its > protection, a situation called misuse. Second, market power resulting > from intellectual property may be used to extend the protection beyond > its purpose, such as to enhance, extend or abuse monopoly power. Third, > agreements on the use or the exploitation of intellectual property may > be concluded in restraint of trade or adversely affecting the transfer > or the dissemination of technology or other knowledge, a situation > called restrictive contracts or concerted practice. In order to prevent > or control such conflicts and to distinguish pernicious practices from > competition-enhancing ones, many countries have enacted antitrust > regulations or other competition legislation to respond to > anticompetitive behaviour. Competition rules are not designed to curb > the functioning of the intellectual property system, but rather to > safeguard its proper functioning. > > 94. The TRIPS Agreement sets out general principles to establish and > enforce anti-monopoly policies. The relevant competition provisions of > TRIPS are Article 8.2 and Article 40. Article 8.2 is part of the > "General Provisions and Basic Principles" of Part I of the Agreement. > Another relevant competition provision of the Agreement is Article 31(k) > dealing with compulsory licenses in the case of practices which have > been determined, after judicial or administrative process, to be > anticompetitive and need to be remedied by the grant of compulsory > licenses. > > 95. Effective administration and enforcement of an intellectual > property-related competition policy appear to be particularly important, > in view of the interdependency of intellectual property protection and > competition. Where the efficient functioning of intellectual property is > impaired by restrictive practices, the market-oriented incentives > decline and social costs rise. In this respect, a well-balanced design > of intellectual property treaties and national laws as regards, for > example, exceptions for prior users, experimental or fair use, adequate > disclosure, efficient and working requirements and misuse defences, may > help both to unburden competition policy and encourage private action > against undue claims for protection. > > 96. The complexities of the application of substantive competition > policy rules relating to intellectual property require specialized and > administrative agencies and courts. > > 97. A major concern that has been expressed in respect of the > intellectual property system as regards transfer of technology is the > potential for abuse of exclusive rights conferred by patents and other > forms of intellectual property. In this context, the work on technology > transfer in WIPO may address elements such as: > * the consideration of model approaches on how to implement the relevant > provisions of TRIPS; > * the inclusion in new intellectual property treaties of relevant > provisions to deal with anti-competitive behaviour or abuse of monopoly > rights by rights holders, such as the proposed Substantive Patent Law > Treaty (SPLT); > * the development of an international framework to deal with issues of > substantive law relating to anti-competitive licensing practices > primarily those that adversely affect the transfer and dissemination of > technology and restrain trade; > * the provision of technical cooperation to developing countries, at > their request, to better understand the interface between intellectual > property rights and competition policies; > * implementation of intellectual property policies in developing > countries should be matched with appropriate enforcement mechanisms that > effectively restrain anti-competitive behaviour; > * Developed countries authorities to undertake, at the request of > affected countries, enforcement actions against firms headquartered or > located in their jurisdictions. > > 98. In sum, any implementation of substantive rules of competition > policy must take account of a large number of complex factors, such as > national and international market conditions and interdependencies and > the goals and structure of national intellectual property (including its > built-in pro-competitive rules such as experimental or fair use, > exhaustion, patent or copyright misuse defences). This is certainly no > easy task and not one that can be complied with by isolated policies or > by one developing country. Rather this is a complex, challenging and > time-consuming endeavour that should be part and parcel of the > programmatic work of WIPO. > > ------------------------------ > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > > End of commons-law Digest, Vol 21, Issue 13 > ******************************************* > From clifton at altlawforum.org Fri Apr 8 05:26:20 2005 From: clifton at altlawforum.org (Clifton) Date: Fri, 08 Apr 2005 08:56:20 +0900 Subject: [Commons-Law] Police lathi charge demonstrations of slum dwellers against demolitions in Mumbai Message-ID: <4255C8A4.2030300@altlawforum.org> *Subject:* Slum Demolitions - Action Alert and Press Conference - VERY URGENT * Despite Brutal Lathicharge by the Mumbai Police on a Rally of Slum Dwellers whose Houses have been Demolished by the State , 1000 Protesters Continue Dharna at Azad Maidan * Police Claims of Stone Throwing by Protesters which led to the Lathi – charge Completely False. * The 22 arrrested persons, including Medha Patkar, Anand Patwardhan, Ulka Mahajan, Sandhya Gokhale , Sanjay M.G., Chitra Paleker, Maju Vargese were released at mid-night by the Night Magistrate on Personal Bond * Press Conference at Azad Maidan to-day ( 7-4-2005) at 2.30 p.m. A peaceful rally was organized by the National Alliance of Peoples’ Movements on 6-4-2005, from August Kranti Maidan to Azad Maidan, Mumbai. Thousands of slum dwellers whose houses had been callously demolished by the Maharashtra Government, as also activists from numerous organizations and individuals had turned out in support of their demands for housing before the monsoons start. The uncalled for and severe ‘lathicharge’ , just outside the Azad Maidan, resulted in over a hundred people having to be taken to the hospitals in the surrounding areas. * The lathis were aimed at the heads of protesters. * The saris and clothes of the women protesters were torn and stripped off by male police. Women were beaten and injured in the inner thigh region. * 2 pregnant women were kicked in their stomachs with police wearing heavy boots. * Many suffered fractures and were bleeding through their clothes. * Nearly 20 children were separated from their parents and 2 toddlers could only be located late last night. * 2 children from Rafiq Nagar are severely injured and in St George’s hospital. Rabia Khatoon – age 9 months, requires a CT Scan. * 22 persons, including Medha Patkar, Anand Patwardhan, Chitra Palekar, Ulka Mahajan, Sanjay M.G., Sujata Ghotoskar, Sandhya Gokhale, Mukta Srivastava, Laxmi Shinde. Pramila Chowdhary, Shashikala Rampyare Prasad, Jayshree Gauri, Kamludidi , Maju Verghese were arrested. Kamludidi was hit on the head with a lathi by a male police man and Devidas Khare was also grievously injured. * Anand Patwardhan was manhandled and his clothes torn. His camera was purposely broken. * The police threatened some of the press persons who were photographing the incident and even tried their level best to convince the night Magistrate to keep them in jail so that information cannot reach the press. * Free use of swear words by the police relating to gender, mother, sister and religion were rampant. The response of the police was to call a Press Conference at 5.00 pm in the Commissioner’s Office and claim that the lathicharge became necessary because of stone throwing and injury to 12 policemen. These are totally false charges. Eye witnesses claim that it was the police who rioted and not the Morcha. The eye - witnesses were enraged at the callous behaviour of SOME of the police towards the children who were lost and injured. The police instead of showing sympathy, were demanding to know why children were brought to the Morcha. When told that people who have been rendered homeless do not have servants to leave their children with, the police threatened the people who were arguing with dire consequences and said that they are not required to reply and that they should not be questioned or spoken to. Those arrested were taken to the Azad Maidan and Ramabai Ambedkar Rd.Police Stations. They were presented before the Magistrate on night duty, who released all concerned on personal bond. On being released around mid-night, those who had been arrested, immediately joined the Dharna at Azad Maidan, which still continues with about a thousand persons being present. Questions were raised in the Assembly by Narsiah Adam ( CPM), Ganpatrao Deshmukh ( PWP) , Narayan Rane ( Leader of the Opposition) and Devendra Phadnis of the BJP. Deputy Chief Minister R.R.Patil is expected to make a statement in response, to-day. Kindly URGENTLY fax a letter of protest to: 1) Sonia Gandhi Fax : Sonia Gandhi : 011- 23018651 / 23016857 2) Prime Minister: 011 – 23016857 / 23019545 / 23015603 3) Chief Minister, Maharashtra 022- 22029214 / 23631446 4) Deputy C.M., Maharashtra 022 – 22024873 Suggested Demands : 1. Immediate action should be taken against the callous perpetrators who led this horrific attack on the already deprived and suffering citizens of our nation : DCP – Naval Bajaj Sr. PI – Kesar Ahmed PI – Sanjay Kadam was particularly brutal and involved with the molestation and harassment of women. 2. Immediately compensate those families who have been living in their houses before the year 2000, but their houses have been broken down despite protection upto the year 2000 having been announced. 3. Open up the lands where fences have been put up and let the people erect their own houses under site and service scheme. 4. Hold a detailed discussion with the affected persons and their representatives, including the NAPM on the Right to Housing and Human Rights. Sanjay M.G., Gajana Khatu, Datta Iswalkar , Mukta Srivastava, Roshni Jadhav, Pervin Jehangir, and others. From anivar.aravind at gmail.com Fri Apr 8 10:21:12 2005 From: anivar.aravind at gmail.com (Anivar Aravind) Date: Fri, 08 Apr 2005 10:21:12 +0530 Subject: [Commons-Law] Plachimada: Court verdict and Comments to verdict Message-ID: <42560DC0.1050303@gmail.com> 1. Coca-Cola firm gets nod for drawing groundwater The Hindu |KOCHI, APRIL 7. http://www.hindu.com/2005/04/08/stories/2005040802450700.htm By Our Staff Reporter A Division Bench of the Kerala High Court today held that the Coca-Cola company will be entitled to draw 5 lakh litres of groundwater a day from its plant at Plachimada in Palakkad without any right for accumulation in case of non-use. The Bench comprising Justice M. Ramachandran and Justice K.P. Balachandran made it clear that the restrictions imposed for the company's consumption would not be applicable when water is drawn for additional requirements such as supply of water to people in the area. The court directed that the company should involve in community development projects such as healthcare and supply of water for people in the area. The court was of the view that since the general public was apprehensive about water shortage, it became an essential duty of the company. Water supply should be undertaken before June 30. Renewal of licence The court held that the Perumatty Grama Panchayat was not justified in rejecting the company's application for renewal of licence well before a scientific assessment was made. The court observed that the drying up of ordinary wells was not a phenomenon specific to Plachimada. As could be gathered from the expert committee appointed by the High Court, shortage in rainfall was a contributory factor. By natural seepage during the rainy season, water travels down to the lower reaches. The committee had explained this as a process of recharging groundwater. The expert committee headed by E. J. James, Executive Director, Centre for Water Resources Development and Management, Kozhikode, was appointed to probe the allegation of excessive drawing of groundwater by the company. In its final report, the committee recommended that the company be allowed to draw 5 lakh litres of water a day under the normal rainfall conditions. The court directed the panchayat to consider the application of the company seeking renewal of licence for the coming year or any block years if such application was filed within two weeks. The court said that the fact that wells were drying up at Plachimada in summer, notwithstanding stoppage of extraction of water by the company after March 2004 and keeping the plant idle, had led to the assumption that the allegations of over-exploitation and consequent shortage of water were not true. 2.Comments to Verdict ==================== Date: Fri, 08 Apr 2005 07:37:39 +0530 From: C.R.Bijoy [The High Court has pronounced. Excerpts from an article published in June-July 2004 is given below as comments to the verdict of the Court in April 2005] Two years have already elapsed since the people of the surrounding villages have set up the picket just across the road opposite the Coca Cola plant of Plachimada. The local Panchayat, the state government and the judiciary have been preoccupied in debating how much water Coca Cola plant should or should not extract, when and from where; are the allegations sufficiently validated by the authorized agencies; is the Panchayat exceeding its authority in its decisions regarding the functioning of Coca Cola. For the people of Plachimada, water is still not potable, water table has gone down, agriculture has almost collapsed leading to large scale unemployment, indebtedness has increased and so too health problems. ............ Conclusion The question is not wheher the MNCs take their corporate social responsibility seriously. It is also not whether the MNCs are ready for and capable of taking over water. It is not also whether governance, in this case of water, is to be handed over to the corporates. Is water for drinking, domestic use and livelihood purposes of the vast masses primary? Or is water for the privileged resource rich leisured class is to be accorded priority over the basic needs of the people? It obviously seems so the way the debates are going on amongst those who decide and influence decision-making. The fundamental question is also who has the rights and power for primary decision-making - the gram sabha, the Panchayat or the State - the people who continue the agitation, the Panchayat coming in support of the struggle only after one year after the struggle was launched and the state still insisting that the Panchayat is overstepping its authority in the cancellation of license. Water for the people and therefore their survival is yet to become the issue for the system as the political-administrative-judicial system is still debating over jurisdiction of power, the scientific validity of the allegations and other such dilatory matters being preoccupied with the issue of 'water for Coca Cola' rather than 'water for the people'! [Excerpted from: Coca-Cola: The Sparkle of Death by C.R Bijoy Combat Law, Vol. 3 Issue 2, June-July 2004, pg.48-51.] From sollybenj at yahoo.co.in Fri Apr 8 11:48:34 2005 From: sollybenj at yahoo.co.in (solomon benjamin) Date: Fri, 8 Apr 2005 07:18:34 +0100 (BST) Subject: [Commons-Law] John Thakara to Anthropologist in the "new war" and my response Message-ID: <20050408061834.85504.qmail@web8403.mail.in.yahoo.com> Hi Apologies for this rather long posting, but may be of interest as a point of debate. Solly ***** Dear John, Thank you for your letter and perhaps an opportunity to open up a much needed debate on the increasingly complex ways of corporate control and how we can strive to maintain autonomy and a sharp political edge in our work, as well as an open discussion space. First, I did enjoy DOORs-8 very much, and for the creative energies that it brought forth. I also very much appreciate the hard work put in by: "..our modestly paid staff colleagues worked 18 hour days for weeks on end. Another success factor in our event was the work, time and enthusiasm of dozens of unpaid student volunteers from Indian colleges and universities...". My posting in the SARAI list, as well as this response does not in any way attempt to de-value those efforts and commitments. I also appreciate your attempt to keep corporate strings to a minimum. I would still however, like to maintain the importance of atleast two issues: First, as mentioned both in my presentation and also in my Commons Law posting, the effort to map in the 'new war'. The second issue relates to increased and subtler forms of corporate control. I suspect that what we witness today, reflects increasingly centralized forms of capital and as a way of shaping public opinion and in parallel control new markets, their penetration in the arts, media, and discourse on technological innovation. There are several who focus on the nature of contemporary capital in more effective ways (Chomsky, Souras, Klein, and also Mic Moor), and several on the way these are located in the globalized connections in cities (Sassen). Let us consider what you may consider to be a useful session event "Mapping Our Hidden Links" for the next DOORs. The DOORs is terrific since it attracts a range of highly creative individuals and groups involved in cutting edge stuff. If so, can such a session focus attention on the sort of 'hidden baggage' that participants may be carrying with them, and explore to what extent these are inter-connected. "Mapping Our Hidden Links" is to map the relatively more hidden financial linkages (institutions, circuits, connections) that fund a particular installation, cases of innovations, experiments, and even urban design initiatives like the Times Square Alliance in NYC. Let us have a group of participants, with the aid of Internet access, 'google' their funders to open up their own links into the wider world: A sort of 'whose connected to whom' in un-packing corporate connections (see for instance, a bibliography on works on corporation http://www.rrojasdatabank.org/tncsbibl.htm; or http://www.theyrule.net/). Can the participants in undertaking this task, also reflect on the issue of 'ownership' of products created, of patent regimes as applied to them? Here, perhaps having a group of smart (but also politicized) lawyers may be able to help unpack how these subject the 'creative edge' to new forms of control and ownership. I am sure in undertaking such a mapping, we will also discover counter-narratives, scams that are often hidden under gloss and media hype. This is not just of the big business, but also of its connections to government too. Based on say an hour's exercise, we could use an integrative mapping tool to place the various individual maps to see cross linkages to show up groups that gain and also those that loose out. Can we take this even one step further? Based on such an interactive exercise, can the participants think about how they might re-frame their installations and approaches to address the newer political realities thy might have realized? Let me give you a concrete example based on a 5 minute google search that I undertook while lounging in the SARAI's 'contested commons' conference held in Delhi in January 2005. The current head of NASSOM (ex-head of Citi bank), India's main IT voice and pushing for strong anti-piracy measures is also listed as 'one of the ones who got away', and has his full page photograph set in a wonderful book "The SCAM: Who won, who lost, who got away' by Debasis Basu, and Sucheta Dalal (Ken Source, 1993,1994, 2001). Incidentally, he is also the nephew of the head of the country's most well known IT firm, allegedly having bailed out that firm for $200 million in when it faced financial difficulties. On the IPR connection to NASSOM, it's well known that the largest IT firms use IPR to shape power relationships against their smaller competitors, effectively control surpluses and capture markets. If we look deeper into these connections, we will also discover set within a very close circuit of these same actors, funds to use GIS and E-Governance in re-shaping property regimes that again target among other things, the ability of small firms to innovate and gain political autonomy (the topic of my presentation at the DOORs-8 and also SARAI's Contested Commons). Located in this financial circuits are intuitions that fund media events, installations, and also publishing on women's issues. To emphasize this point, some insights from Bangalore and a recent visit to Bombay: In both cases, we see their a much larger re-structuring of both economy and politics that create new contestations over space. What we also increasingly find, a congruence of financial institutions and circuits that gain substantial profits from access to cheap land, from reframing regulations (planning, property regimes, and IPR) against small firm clusters, and fund increasing corporate control over basic services like water. The use of IPR, forms of GIS and land titling, and "e-governance" are central tools. Significantly, and this is my main point, the same institutions also deploy substantial 'un-tied' resources to promote 'art and culture' events (often hiring 'PR firms" to help feature these events in the 'page 3' type of glossy journalism), funds for architects and urban planners to undertake 'conservation', efforts to cultivate the media, and the promotion of elite based 'civil society initiatives'. Not surprisingly, we see, architects and planners involved in protesting housing evictions, also getting grants to do conservation that effectively removes hawkers from the newly beach-fronts, or then small innovative based firm clusters. The media events, promotion of elite based civil society is very effective in shaping public opinion, and in a sense to 'manufacture consent'. If so, than I suspect, that we will increasingly see forums to discuss technological innovations, 'best practice', have in attendance corporate groups to scout out what's new, and 'fundable'. Art and media has never been neutral, but to emphasize that unless one specifically addresses the new forms of controls that come with funding, and trace out the 'backward and forward' linkages (in the language of economist) one would hardly ever understand the way hidden levers operate. I hope this response to your open letter has been convincing to point to larger issues of corporate control (rather than any form of a personal attack). The issues are too great of concern to be caught up in triviality. I would very much look forward to more of DOORs, but also as a way to take on this debate and discussion further onto a more political terrain. Specifically an opportunity to draw via a "Mapping Our Hidden Links" the creative congruence of the participants that I have mentioned above. I appreciate your point that DOORs operates on the bare minimum of corporate funding. My argument is that explicit funding to an event is one aspect, but in today's 'new war', it is the subtler forms that may be more all pervasive. Cheers Solly ************ Open letter to Dr Solomon Benjamin Dear Solly, My attention has been drawn to your post of 28 March on the Sarai Commons-Law mailing list. I am usually pretty relaxed about criticism. After all, if our events failed to provoke discussion and disagreement, they would be feeble events indeed. One reason I was so happy to be introduced to your work, and then to be able to ask you to come to speak, was that you bring such clarity and sharpness to the issues we set out to understand and discuss. I am especially sympathetic to your pointed question about "our attempt to constantly map our cities in a un-questioning way". I raised similar questions myself, before and after Doors 8 - but your doubts are more sharply stated. You are right: we need to think far more critically about the use of cartography and mapping by designers in the context of research and product development. But one sentence in your posting is upsetting and, frankly, demeaning. You write (about the programme) that it contained "Little on improving corporate accountability though, but then, the sponsors would hardly approve of that topic as a session heading". The clear implication is that our corporate sponsors were able so to determine the agenda so that nothing that might have discomifted them appeared. The facts are as follows. First, I did not solicit the approval of our sponsors, or their input, on any aspect of the the programme. The agenda for the Doors 8 programme was determined by me personally according to a policy that has applied very publicly to all Doors events since 1993: corporate agendas (or those of any special interest group, including designers) shall not influence or impinge on the programme in any way, period. For Doors 8, we did discuss with several companies the content of one pre-conference workshop on "Service Design In Emerging Economies"; this was conceived and executed as a special interest event about business issues; it would have been strange (if not impossible) to prepare it without involving business people. But apart from that one workshop, which was one event among nine days of events, the entire programme was developed independently. Second, the total amount of money contributed by commercial sponsors to Doors 8 was a rather small proportion of the total costs of the event when the time of staff members is counted in. We wish we had raised a lot more sponsorship. But by far the largest part of the global budget for Doors 8 comprised time and resources donated by the two organisers: the Doors of Perception Foundation, and the Centre for Knowledge Societies. The suggestion of improper corporate influence is especially damaging considering that the event was only possible because our modestly paid staff colleagues worked 18 hour days for weeks on end. Another success factor in our event was the work, time and enthusiasm of dozens of unpaid student volunteers from Indian colleges and universities. I am writing to you publicly like this because your comment follows a series of jibes that, until now, I had decided to ignore. During the months before Doors 8, we heard continuous reports of ill-informed chitchat to the effect that Doors was a "commercial" event at the service of corporate interests. The fact that such comments were, are are, totally untrue does not stop them being damaging. They should stop. Hence this letter. For the record, I am as delighted now as I was a month ago to have discovered your work. The energy and insight you brought to the Doors conference was something special, and helped to make it a fabulous and memorable event. I look forward to inviting you to another Doors event as soon as possible. With warm regards, John Thackara ________________________________________________________________________ Yahoo! India Matrimony: Find your life partner online Go to: http://yahoo.shaadi.com/india-matrimony From prabhuram at gmail.com Fri Apr 8 14:40:07 2005 From: prabhuram at gmail.com (Ram) Date: Fri, 8 Apr 2005 11:10:07 +0200 Subject: [Commons-Law] Economic Times: Yoga's caught in trademark twists Message-ID: <68752c9f05040802102b95e562@mail.gmail.com> >The Economic Times Online Yoga's caught in trademark twists K YATISH RAJAWAT You've heard of the open source software movement, now it's the turn of yoga to fight for 'open source' in the US courts. Copyright and trademark issues related to yoga practices — which are likely to shake up the roots of the centuries-old tradition — are now taking centrestage in the US. While consensus on the issue is still some time away, a court in California is now hearing a case for copyright of yoga routines, and lawyers and practitioners say the case will have far-reaching implications on yoga practitioners all over the world. The long-standing legal battle is between the popular, US-based proponent of yoga, Bikram Choudhary, and an organisation of yoga-stu dio owners and teachers called Open Source Yoga Unity (OSYU). Mr Choudhary has written a book, which has a copyright, on a routine of asanas that he calls 'Bikram Yoga.' Some time ago, he sent notices to some yoga studios to desist from using this routine, as doing so constituted a copyright infringement. OSYU was born out of this conflict and the issue is being thrashed out in court. Vanessa Calder, chairperson, OSYU, said, "One cannot copyright, or own in any manner, an exercise routine." Traditional proponent of yoga, Prashant Iyengar, son of the legendary BKS Iyengar, also rejected the idea of any form of trademark or ownership over yoga. "We are not teaching a new brand of yoga, though our pupils like to call it 'Iyengar Yoga.' We are following the age-old traditional methods of yoga given by Patanajali. We can't claim ownership or name it separately; this is traditional knowledge, it is eternal, it can't be claimed by an individual," he said. The copyright for yoga practices does not belong to any Indian school of thought. The battle for it is being waged in a US court. Many are of the opinion that the traditional knowledge can't be claimed by any individual. However, lawyers beg to differ. Rahul Mathan, a patent expert with Trilegal, a law firm, said, "US trademark and copyright laws are the broadest and most liberal in the world. While its application is not global, it creates an unhealthy precedent. Basically, if proved that it is a novel process, non-obvious and has some industrial application, it can be patented." Bikram Choudhary or his organisation, Bikram Yoga College of India, have not applied for a patent so far, but copyright issues are at stake. Mr Choudhary reportedly owns copyrights on a book, Bikram's Beginning Yoga Class, a video tape, audio tape and some other written material. He also registered a supplement to the copyright on his book, which he claims covers the original work of putting the particular yoga routine together. He claims that the 'Bikram Yoga' method he perfected is unique since it is done in a heated room and follows a routine of asanas, which may not be traditional in nature. Subsequently, Bikram Choudhary sent cease and desist orders to other practitioners of yoga in the US. He sent them legal notices to stop practising or teaching any form of 'Bikram Yoga,' as it was an infringement of a copyright. Some studios, which were using the name 'Bikram Yoga' or 'Hot Yoga' to publicise their classes were also asked to stop doing so, as it would infringe a trademark. This decision to enforce a copyright on a series of pranayams and 26 asanas has disrupted the peace of yogis in the US and Canada and one group has sought legal recourse. Despite repeated attempts, Bikram Choudhary, or any spokesperson for the organisation did not reply to queries on this issue for a week. Ms Calder said, "Just because Mr Choudhary wrote a book about yoga, and even if he put together yoga postures in a very good series or routine, US law does not give him the right to own that routine, and therefore, control who practises or teaches that routine." According to her, if the copyright is upheld by the California court, which has completed a hearing on the issue, it will have an impact on the practice of yoga. "If he succeeds in upholding the rights he claims, it implies that writing a book about any method of exercise, or any method of massage, or other health matters, would give you exclusive rights to that method. It would also imply that every yoga instructor, who puts yoga postures together in a routine, would be able to copyright and control that particular routine," she added. Patent experts here, though, say the decision will be a difficult one. While the OSYU cites protection of yoga and disciple training as the crux of its argument, livelihood is also at stake. The majority of active members of OSYU are people who were trained by Bikram Choudhary to teach yoga and subsequently, opened yoga studios, making their livelihood teaching 'Bikram Yoga.' Rama Sarma, intellectual property law expert, Kochar & Company, Chennai, said: "The laws of copyright do not protect ideas, but they deal with the particular expression of ideas. The protection of ideas does not fall within the laws of copyright, but within patent laws. Unlike the owner of a copyright, a patent owner has the sole right to use his invention within certain limits, and if anybody uses that patent — although he has made independent investigations — he infringes the patent." In the case of copyright, it is not the same. It is always possible to arrive at the same result from independent sources, and the fact that the OSYU produces something like the 'Bikram Yoga' does not necessarily create an infringement; it must be shown that the defendant has derived his work from the plaintiffs. The Copyright Act in the US has provisions for 'Fair Use,' which state, "Fair use is more likely when the copyright work is "transformed" or that are at a mere reproduction, or of new utility, such as quotations incorporated into a paper and perhaps pieces of a work mixed into a multimedia product for your own teaching needs or included in commentary or criticism of the original." -- Prabhu Ram, Max-Planck-Institut for Intellectual Property, Competition and Tax Law, MarstallPlatz 1, 80539 Munich GERMANY Tel: + 49 89 24246226 Mob: + 49 17629830521 Web: http://infoserve.blogspot.com From anand at sarai.net Fri Apr 8 16:15:30 2005 From: anand at sarai.net (Anand V. Taneja) Date: Fri, 8 Apr 2005 12:45:30 +0200 (CEST) Subject: [Commons-Law] Googling the 'Goonda Act' Message-ID: <1141.203.200.122.68.1112957130.squirrel@mail.sarai.net> dear all, On Monday, while scanning through Screen, I came across the following article. CCCA threatens indefinite theatre strike Thursday, April 07, 2005 http://www.screenindia.com/print.php?content_id=10109 'Santosh Singh Jain, President of the Central Circuit Cine Association, has expressed anguish over the failure to curb piracy in the said territory rising from the inability to force the provisions of the Copyright Act, 1957 and Cable Television Networks Regulation Act and its rules. 'This has resulted in the illegal exhibition of latest releases on cable in defiance of rule no. 6 and sub rule no. 3 notified by the Union government's Information & Broadcasting Ministry on September 8. Under this newly inserted rule, no cable operator and service provider can exhibit any programme including films without obtaining written consent from the copyright owner. Jain has threatened that 1,800-2,000 theatres in the Central Circuit will go on indefinite strike if the state government fails to take immediate steps akin to the action taken by the Tamil Nadu government by enforcing the Goonda Act against film pirates.' What interested me was the familarity with the 'law', or at least, with legalese) reflected in this following statement. ('defiance of rule no. 6 and sub rule no. 3 notified by the Union government's Information & Broadcasting Ministry on September 8.') What was more interesting was the Goonda Act, which I hadn't heard of before. So I googled 'Goonda Act', and to my surprise the first thing I Got was, 'Seer fears arrest under Goonda Act' http://in.rediff.com/news/2005/jan/13kanchi2.htm Speaking exclusively to rediff.com on Thursday, the pontiff's lawyer, M N Krishnamani, said: "We simply fail to understand [Tamil Nadu] CM Jayalalithaa. Now, we have been told that the seer will be arrested under the Goonda Act, which is just as stringent as POTA [Prevention of Terrorism Act] was." A law as stringent as POTA. And later I read Coomi Kapoor in the Indian Express who informs us that - Indian Express Sunday, December 12, 2004 http://www.indianexpress.com/columnists/full_column.php?content_id=60665 'Jayalalithaa has become the heroine of the film world with both southern superstars, Rajnikant and Kamal Hasan, hailing her at a function in her honour after she clamped down on video piracy. Those caught for video piracy in Tamil Nadu are now booked under the Goonda Act which is a non-bailable offence.' A law as stringent as POTA. Also used to arrest those suspected of murder. And a non bailable offence. Now I don't know law at all, but this all sound rather dire. Further googling got me the following articles, indicating, along with the initial piece from Screen, a sort of ripple effect, a desire to emulate similar laws in the neigbouring states of Karnataka, Kerala, Andhra Pradesh by those involved in the film trade. And of course, in the Central Circiut, as Screen informs us – Film piracy may come under Goonda act http://www.deccanherald.com/deccanherald/mar112005/c2.asp Friday, March 11, 2005 'The State government is likely to bring video and audio cassette piracy under the purview of Goonda Act, on the lines of neighbouring Tamil Nadu, Karnataka Film Chamber of Commerce (KFCC) President H D Gangaraj announced on Thursday. 'Speaking to reporters in Bangalore, he said that the increase in the number of video and audio piracy cases has been a cause for concern for the entire film industry. Due to piracy, producers and distributors are incurring a huge loss, he added.' Malayalam film industry's tragedy script continues IndiaGlitz Tuesday, December 28, 2004 http://www.indiaglitz.com/channels/malayalam/article/12337.html 'The prime reason the industry is heading towards disaster is video piracy, which has taken a huge toll on its profitability. "By the time a new release arrives at the theatres, the video CDs of the film would also have reached vendors. Look at Tamil Nadu, they included video piracy under the Goonda Act three months back and people are now flocking to the theatres," Unni said. "During Diwali in Tamil Nadu, several new films could not be released because old ones continued to run strong in the theatres making them unavailable for releases," he said.' Telugu film industry to set up monitoring cells to curb piracy The Hindu Business Line, Wednesday, Sep 29,2004 http://www.thehindubusinessline.com/2004/09/29/stories/2004092902631700.htm 'Mr G. Adiseshagiri Rao, President of AP Film Chamber of Commerce, told Business Line that the Chamber would study the Tamil Nadu's latest move to curb the piracy menace. The Tamil Nadu Government had decided to bring piracy into the ambit of Goonda Act. "We will study it and see what we can emulate from it," he said. "Even the Union Government has agreed to help out, the Minister for Information and Broadcasting, Mr S. Jaipal Reddy, said the Government would bring out an amendment to the Copy Rights Act to slap stringent punishments on the offenders," he said.' Looked at one way, it is as if Tamil Nadu is an epicentre from where waves of approval/demand for this law are radiating outwards – from the Southern states to the Central Circuit – at least among those who exhibit/produce/ distribute films. Aarti has asked us recently, how does the law circulate? And this 'demand' for the law is an interesting example of circulation, wishing for a provision of law to exist, where it doesn't. This seems particularly interesting in the case of the demand from the Central Circuit Cine Association, and its very legalistsic demand. For, according to my limited knowledge, the Goonda Act is not in force in the territories of the Central Circuit. Dealing with goons -- surface level and source level http://groups.msn.com/BABUBHASKAR/gulftoday1.msnw GULF TODAY, December 25, 2003 'The Pocket Oxford Dictionary of Current English gives two meanings for the word "goon:" stupid person; hired ruffian. It categorises the word as slang and indicates that it is of uncertain origin. Actually it is one of the many Indian words that crept into the English language during the days of the Raj. It is a modified form of the Hindi term "goonda," which means gangster. This term and a derivative "goondaism" are widely used in Indian English. They figure regularly in the local media. Goondas have been in the news continuously in Kerala in the recent past as they are active in many cities. They [the police] want the state to enact a law on the lines of the Goonda Act in force in the states of Tamil Nadu, Andhra Pradesh and West Bengal. The Act empowers the police to extern goondas from the cities. Last week Chief Minister AK Antony, yielding to pressure from the police, announced the government's willingness to enact a Goonda Act. The Goonda Act, as it exists in other states, is specifically directed against organised urban crime. It allows the city police to proclaim a habitual offender a goonda and order him out of the city for a specified period.' Even if the Goonda Act is not in force in states apart from Tamil nadu, Andhra Pradesh and West Bengal, it cerntianly has an imaginative reach over a wider swathe. I am thinking here of the term 'Tadipaar' (as in the title of the 1993 Mithun Chakraborty film). The word Tadipaar specifically connotes those who have been extradited outside city limits. A word which cannot exist without the existence of the law in public consciousness. I am sure there are earlier histories of the law which I will be very glad if people on the list will expand on. But what is the imagination of the goonda, for which the law is formulated? I return here to writings on the extended Shankracharya/ Sankaraman murder case, which is a really strange parralel to the video pirates – both in terms of the chronology, and the perhaps extreme extension of the law. Seer case: TN violated SC directive on Goonda Act http://news.indiainfo.com/2005/02/17/1702seeract.html Thursday, February 17 2005 'the detention of Kanchi Mutt Manager Sundaresa Iyer and Raghu, brother of junior Shankaracharya Vijayendra Saraswathi, both accused in the Sankararaman murder case under the Goondas Act appears to be a clear violation of a Tamil Nadu Government's recent directive on detentions under the stringent law. The circuclar had been issued in the light of observations made by the Supreme Court which held in a case that, a solitary instance of robbery, as mentioned in the grounds for detention under the Goondas Act in a criminal case, was not relevant for sustaining the order of detention for the purpose of preventing the persons from acting in a manner prejudicial to the maintenance of public order, an official said on condition of anonimity. The circular also gave a defenition of Goondas Act which said, "Goonda means a person, who either by himself or as a member of or leader of a gang, habitually commits or attempts to commit or abets the commission of offences, punishable under some sections of IPC including intimidation, robbery and annoyance.” The Hindu, perhaps noticing the prevalence of the term Goonda in much statist and media discourse, also asked the question, “Who is a Goonda?” Get to know the goonda, here and now Financial Daily from THE HINDU group of publications Wednesday, Feb 02, 2005 http://www.blonnet.com/2005/02/02/stories/2005020200272000.htm The common man is obviously in a hurry to get to know the goonda. And an indication of his ubiquitous curiosity has been showing in my inbox with strange `subject' lines such as, `goonda who,' and `help with goonda,' though I've been shift-deleting these mails as spam. In atonement, therefore, here is some guidance on the subject. Who is a goonda? Goonda means a person, who either by himself or as a member of or leader of a gang, habitually commits or attempts to commit or abets the commission of offences, punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code (IPC), 1860. Is there a Goonda Act? In fact, the legislation has a long name: "The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest-offenders, Goondas, Immoral Traffic Offenders, Slum-grabbers and Video Pirates Act, 1982." However, it's common to use the shorthand `Goondas Act' in news bulletins, so as not to offend listeners' interest. Goonda Acts, as listed in the IPC's chapters, include `offences against the human body' such as murder, `offences against property' such as dacoity, and `criminal intimidation, insult and annoyance.' Till the amendment, announced last September, the act actually read, “The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest-offenders, Goondas, Immoral Traffic Offenders, Slum-grabbers Act, 1982.” Pretty tough on your friendly neigbourhood video pirate, no? Perhaps as an aside, I want to mention other categories who have come under the Goondas Act - VIII. THE CRIMINALIZATION OF SOCIAL ACTIVISM Human Rights Watch http://www.hrw.org/reports/1999/india/India994-10.htm According to a Dalit activist working in Tirunelveli and Tuticorin districts, Tamil Nadu, many “young, educated youths” were also detained under the Tamil Nadu Goondas Act during the southern district clashes in 1997.254 A goonda is defined as a habitual criminal, usually associated with a criminal gang. According to the Policy Notes of the Prohibition and Excise Department, Tamil Nadu Government, Video Piracy was put into the Goondas Act, because it is an act prejudicial to the maintanence of public law and order(?) It would be interesting to see the arguments that are marshalled by the state in support of this. This could be an interesting extension of Mayur's work. Also, it would be interesting to compare the debates around public law and order with regards to the cinema, in the 'defence 'of which this amendment was passed. I am thinking here of the work of SV Srinivas – 'Is there a public in the cinema hall?' Government of Tamil Nadu Prohibition and Excise Department Policy Note, 2005-2006 http://www.tn.gov.in/policynotes/prohibition_excise.htm 7. PREVENTION OF VIDEO PIRACY Video piracy is an act prejudicial to the maintenance of public law and order. Due to this video piracy, the film industry has been facing severe crisis and the Producers, Distributors and Theatre owners have been put to loss of revenue. Representatives from various associations have pleaded for the eradication of this menace, and requested to put the film industry on the revival path. The Hon’ble Chief Minister ordered to amend the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest-offenders, Goondas, Immoral Traffic Offenders and Slum-grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) to detain the video pirates under the said Act with a view to preventing them from acting in any manner prejudicial to the maintenance of public order. This Act came into force from 1st October 2004. TN announces sops for film industry The Hindu, Tuesday, Sep 28, 2004 http://www.blonnet.com/2004/09/28/stories/2004092801941700.htm THE Tamil Nadu Government has announced a package of measures supporting the film industry, including tightening of legislations to prevent piracy and tax concessions and subsidies. According to an official statement, the Tamil Nadu Chief Minister, Ms Jayalalithaa, said that the Government would amend the Tamil Nadu prevention of dangerous activities of bootleggers, drug offenders, forest offenders, goondas, immoral traffic offenders and slum grabbers Act, 1982 (Tamil Nadu Act of 14 of 1982) to include video pirates. The Government would also stringently enforce the Copyright Act, 1957 (Act 14 of 1957 - Central Act). This provides for penalties including imprisonment up to three years and a fine of up to Rs 2 lakh. The video piracy cell would also be strengthened and six more cells would be added to the existing six cells, the statement said. While ensuring that pirated video films are not exhibited in State-owned transport buses, the private operators have also been given strict instructions to not to exhibit such cassettes. The Tamil Nadu Exhibition of films on television screen through video cassette recorders and cable television network (Regulation) Act, 1984 (Tamil Nadu Act 7 of 1984) would also be amended to make penalties more stringent including providing for imprisonment up to two years and fine of a minimum of Rs 1 lakh. Entertainment tax applicable to Municipal Corporation areas and Special Grade Municipalities will be brought down to 15 per cent from 25 per cent of gross payment for new films and 10 per cent for old films, which were earlier subject to 20 per cent. This will also be applicable to permanent and semi-permanent theatres within a radius of 5 km. In other areas where the tax is levied on a compounding basis per show or week, a simple system of 10 per cent on gross payment would be introduced. To protect the revenue of the local bodies, which receive 90 per cent of the revenue from entertainment tax, an alternative compensation arrangement will be made, the statement said. Low budget films with "good themes useful for social mobilisation and propagating good values" will qualify for entertainment tax exemption. Cinemas can now collect maintenance charges of 50 paise for non-air conditioned halls and Re 1 for air-conditioned ones. The Government has granted three-year exemption from sales tax on lease transactions of outdoor units, equipment hirers, studios, laboratories, recording theatres, audio, video and satellite rights, which now attract 12 per cent. It has also decided to withdraw penal action to recover sales tax on such leases. Rates for shooting films in various locations have also been slashed. For Category-I locations such as colleges, sanctuaries and Kodaikanal and Ooty lakes the charge will be cut to Rs 10,000 a day from Rs 50,000, and for shooting at Rajaji Hall (in Chennai) the fee will be Rs 25,000 against Rs 1 lakh charged earlier. For Category-II locations, which include other public places, the charge will be Rs 5,000 a day against Rs 25,000. The State Government has also decided to grant a subsidy of Rs 7 lakh to low-budget films with a maximum of 25 prints and length of up to 3,000 metres. To be introduced with effect from 2003, the scheme will be implemented at an annual cost of Rs 2 crore, the statement said.' Now it seems a bit extreme to book someone under the Goonda Act for showing films on a video coach. Lawrence has just written in to Ritika (forwarded on to the PPHP list) to say that this amendment is currently being challenged because the State government does not have the power to act on a Central subject, ie The Copyright Act(?) Now, I may have got the details of that wrong, but it certianly seems that the legality of the amendment is currently being challenged. But the legality nonwithstanding, the act of announcing the Goonda Act seems to have had immediate repurcussions in Tamil Nadu, as well as ripples of approval outside the state. Prior to 'legality'. Prior even, it seems, to enforcement. Video pirates vanishing Almost all video/CD parlours in the city have closed down since their business was thriving mainly on pirated copies of movies. As there are no takers for pirated CDs of latest movies, the CD-writing concept has also become defunct, says S. Vijay Kumar. http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2004101614200300.htm&date=2004/10/16/&prd=th& EVEN BEFORE the police started enforcing the amended laws to curb video piracy, the clandestine activities of pirates, flourishing in the city for decades, have suddenly vanished. Video parlours and compact disc shops downed shutters hours after the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1982, was amended enabling the law enforcing agencies to detain video pirates. Thousands of youth involved in the CD writing business at undisclosed centres have closed down. Omni bus/van operators have switched off television sets since the amendments to the Tamil Nadu Exhibition of Films on Television Screen through Video Cassette Recorders and Cable Television Network (Regulation) Act, 1984, now provides for punishment with an imprisonment up to two years or fine which shall not be less than Rs. one lakh but which may be extended to Rs.five lakhs or with both. Almost all video/CD parlours in the city have closed down since their business was thriving mainly on pirated copies of movies. As there are no takers for pirated CDs of latest movies, the CD-writing concept has also become defunct. According to the Inspector (Video Piracy), M.S.M. Abdul Rahim, Madurai was the gateway for the circulation of pirated CDs to the southern districts. The Meenakshi and Pondy Bazaar localities, which were notorious for the sale of such CDs, had quit business. "We have plugged all gaps. The video pirates know that the new law is severe and habitual offenders can also been detained under the Goondas Act," he says. Though the "master prints" of pirated versions originally came from Chennai, hundreds of illegal operators made copies of such CDs. "It just needs a computer, CD-writer and a few gadgets to make these pirated CDs. The cost of production per CD would be sometimes less than Rs. 15," Mr. Rahim says, adding that an elaborate plan had been chalked out to prevent the video piracy industry from resurfacing. Interestingly, the number of movie-goers is said to have gone up since early October. The collection for movies such as `Vasool Raja', `Gajendra' and `M. Kumaran son of Mahalakshmi', have gone up after a brief slump, say cinema theatre owners. However, police officials say video piracy cannot sustain without the connivance of some persons in the film industry. "The original print has to either come from the movie halls or laboratories. Some producers even sell copyrights to foreign dealers to double their profits. However, it boomerangs since the pirated versions land in the State hours later," says another police official.' I am left finally with a set of images, all of which seem to be linked with the Goonda Act. The first is of Rajnikanth and Kamal Haasan congratulating Jayalalitha. I am remembering Rajnikanth's copyrighting/patenting(?) of his own actions after the release of Baba. Wasn't Baba a 'political' film specifically against Jayalalitha? (I may be completely mistaken about this.) Why is it that the whole anxiety about copyright and piracy is playing out in such an extreme fashion in Tamil Nadu rather than anywhere else? (Is it becuase the state is ruled by a former film-star?) Then the arrest of the Shankracharya and the whole sordid mess that follows. then the killing of Veerapan. All linked now with the ubiquitous Goonda Act. As is the figure of the Tadipaar – exiled from his own city. And the figure of the video 'pirate'. There are linkages here that i don't want to draw. I am hoping someone else will draw completely different ones, and clarify some of the confusions I have about the Goonda Act. -- The Sarai Programme http://www.sarai.net/ Weblog http://synchroni-cities.blogspot.com/ From lawrence at altlawforum.org Fri Apr 8 20:01:36 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Fri, 08 Apr 2005 20:01:36 +0530 Subject: [Commons-Law] Googling the 'Goonda Act' In-Reply-To: <1141.203.200.122.68.1112957130.squirrel@mail.sarai.net> Message-ID: Hi Anand Also have a look at Vivek Dhareshwar and R Srivatsa on Rowdysheeters in Sublatern studies Vol. IX which has an interesting take on the at the figure of the rowdy sheeter Lawrence On 4/8/05 4:15 PM, "Anand V. Taneja" wrote: > dear all, > On Monday, while scanning through Screen, I came across the following > article. > > CCCA threatens indefinite theatre strike > Thursday, April 07, 2005 > http://www.screenindia.com/print.php?content_id=10109 > > 'Santosh Singh Jain, President of the Central Circuit Cine > Association, has expressed anguish over the failure to curb piracy in > the said territory rising from the inability to force the provisions > of the Copyright Act, 1957 and Cable Television Networks Regulation > Act and its rules. > 'This has resulted in the illegal exhibition of latest releases on > cable in defiance of rule no. 6 and sub rule no. 3 notified by the > Union government's Information & Broadcasting Ministry on September 8. > Under this newly inserted rule, no cable operator and service provider > can exhibit any programme including films without obtaining written > consent from the copyright owner. Jain has threatened that 1,800-2,000 > theatres in the Central Circuit will go on indefinite strike if the > state government fails to take immediate steps akin to the action > taken by the Tamil Nadu government by enforcing the Goonda Act against > film pirates.' > > What interested me was the familarity with the 'law', or at least, > with legalese) reflected in this following statement. ('defiance of > rule no. 6 and sub rule no. 3 notified by the Union government's > Information & Broadcasting Ministry on September 8.') What was more > interesting was the Goonda Act, which I hadn't heard of before. So I > googled 'Goonda Act', and to my surprise the first thing I Got was, > > 'Seer fears arrest under Goonda Act' > http://in.rediff.com/news/2005/jan/13kanchi2.htm > Speaking exclusively to rediff.com on Thursday, the pontiff's lawyer, > M N Krishnamani, said: "We simply fail to understand [Tamil Nadu] CM > Jayalalithaa. Now, we have been told that the seer will be arrested > under the Goonda Act, which is just as stringent as POTA [Prevention > of Terrorism Act] was." > > A law as stringent as POTA. And later I read Coomi Kapoor in the > Indian Express who informs us that - > > Indian Express > Sunday, December 12, 2004 > http://www.indianexpress.com/columnists/full_column.php?content_id=60665 > 'Jayalalithaa has become the heroine of the film world with both > southern superstars, Rajnikant and Kamal Hasan, hailing her at a > function in her honour after she clamped down on video piracy. Those > caught for video piracy in Tamil Nadu are now booked under the Goonda > Act which is a non-bailable offence.' > > > A law as stringent as POTA. Also used to arrest those suspected of > murder. And a non bailable offence. Now I don't know law at all, but > this all sound rather dire. > > Further googling got me the following articles, indicating, along with > the initial piece from Screen, a sort of ripple effect, a desire to > emulate similar laws in the neigbouring states of Karnataka, Kerala, > Andhra Pradesh by those involved in the film trade. And of course, in > the Central Circiut, as Screen informs us ­ > > Film piracy may come under Goonda act > http://www.deccanherald.com/deccanherald/mar112005/c2.asp > Friday, March 11, 2005 > 'The State government is likely to bring video and audio cassette > piracy under the purview of Goonda Act, on the lines of neighbouring > Tamil Nadu, Karnataka Film Chamber of Commerce (KFCC) President H D > Gangaraj announced on Thursday. > > 'Speaking to reporters in Bangalore, he said that the increase in the > number of video and audio piracy cases has been a cause for concern > for the entire film industry. Due to piracy, producers and > distributors are incurring a huge loss, he added.' > > > Malayalam film industry's tragedy script continues > IndiaGlitz > Tuesday, December 28, 2004 > http://www.indiaglitz.com/channels/malayalam/article/12337.html > 'The prime reason the industry is heading towards disaster is video > piracy, which has taken a huge toll on its profitability. > "By the time a new release arrives at the theatres, the video CDs of > the film would also have reached vendors. Look at Tamil Nadu, they > included video piracy under the Goonda Act three months back and > people are now flocking to the theatres," Unni said. > "During Diwali in Tamil Nadu, several new films could not be released > because old ones continued to run strong in the theatres making them > unavailable for releases," he said.' > > Telugu film industry to set up monitoring cells to curb piracy > The Hindu Business Line, Wednesday, Sep 29,2004 > http://www.thehindubusinessline.com/2004/09/29/stories/2004092902631700.htm > 'Mr G. Adiseshagiri Rao, President of AP Film Chamber of Commerce, told > Business Line that the Chamber would study the Tamil Nadu's latest > move to curb the piracy menace. > The Tamil Nadu Government had decided to bring piracy into the ambit > of Goonda Act. "We will study it and see what we can emulate from it," > he said. > "Even the Union Government has agreed to help out, the Minister for > Information and Broadcasting, Mr S. Jaipal Reddy, said the Government > would bring out an amendment to the Copy Rights Act to slap stringent > punishments on the offenders," he said.' > > > Looked at one way, it is as if Tamil Nadu is an epicentre from where > waves of approval/demand for this law are radiating outwards ­ from the > Southern states to the Central Circuit ­ at least among those who > exhibit/produce/ distribute films. Aarti has asked us recently, how does > the law circulate? And this 'demand' for the law is an interesting example > of circulation, wishing for a provision of law to exist, where it doesn't. > This seems particularly interesting in the case of the demand from the > Central Circuit Cine Association, and its very legalistsic demand. For, > according to my limited knowledge, the Goonda Act is not in force in the > territories of the Central Circuit. > > Dealing with goons -- surface level and source level > http://groups.msn.com/BABUBHASKAR/gulftoday1.msnw > GULF TODAY, December 25, 2003 > > 'The Pocket Oxford Dictionary of Current English gives two meanings for > the word "goon:" stupid person; hired ruffian. It categorises the word as > slang and indicates that it is of uncertain origin. Actually it is one of > the many Indian words that crept into the English language during the days > of the Raj. It is a modified form of the Hindi term "goonda," which means > gangster. This term and a derivative "goondaism" are widely used in Indian > English. They figure regularly in the local media. > Goondas have been in the news continuously in Kerala in the recent past as > they are active in many cities. They [the police] want the state to enact > a law on the lines of the Goonda Act in force in the states of Tamil Nadu, > Andhra Pradesh and West Bengal. The Act empowers the police to extern > goondas from the cities. Last week Chief Minister AK Antony, yielding to > pressure from the police, announced the government's willingness to enact > a Goonda Act. The Goonda Act, as it exists in other states, is > specifically directed against organised urban crime. It allows the city > police to proclaim a habitual offender a goonda and order him out of the > city for a specified period.' > > > Even if the Goonda Act is not in force in states apart from Tamil nadu, > Andhra Pradesh and West Bengal, it cerntianly has an imaginative reach > over a wider swathe. I am thinking here of the term 'Tadipaar' (as in the > title of the 1993 Mithun Chakraborty film). The word Tadipaar specifically > connotes those who have been extradited outside city limits. A word which > cannot exist without the existence of the law in public consciousness. I > am sure there are earlier histories of the law which I will be very glad > if people on the list will expand on. > > But what is the imagination of the goonda, for which the law is > formulated? I return here to writings on the extended Shankracharya/ > Sankaraman murder case, which is a really strange parralel to the video > pirates ­ both in terms of the chronology, and the perhaps extreme > extension of the law. > > > Seer case: TN violated SC directive on Goonda Act > http://news.indiainfo.com/2005/02/17/1702seeract.html > Thursday, February 17 2005 > 'the detention of Kanchi Mutt Manager Sundaresa Iyer and Raghu, brother of > junior Shankaracharya Vijayendra Saraswathi, both accused in the > Sankararaman murder case under the Goondas Act appears to be a clear > violation of a Tamil Nadu Government's recent directive on detentions > under the stringent law. > The circuclar had been issued in the light of observations made by the > Supreme Court which held in a case that, a solitary instance of robbery, > as mentioned in the grounds for detention under the Goondas Act in a > criminal case, was not relevant for sustaining the order of detention for > the purpose of preventing the persons from acting in a manner prejudicial > to the maintenance of public order, an official said on condition of > anonimity. > The circular also gave a defenition of Goondas Act which said, "Goonda > means a person, who either by himself or as a member of or leader of a > gang, habitually commits or attempts to commit or abets the commission of > offences, punishable under some sections of IPC including intimidation, > robbery and annoyance.² > > > The Hindu, perhaps noticing the prevalence of the term Goonda in much > statist and media discourse, also asked the question, ³Who is a Goonda?² > > Get to know the goonda, here and now > Financial Daily from THE HINDU group of publications > Wednesday, Feb 02, 2005 > http://www.blonnet.com/2005/02/02/stories/2005020200272000.htm > The common man is obviously in a hurry to get to know the goonda. And an > indication of his ubiquitous curiosity has been showing in my inbox with > strange `subject' lines such as, `goonda who,' and `help with goonda,' > though I've been shift-deleting these mails as spam. In atonement, > therefore, here is some guidance on the subject. > Who is a goonda? > Goonda means a person, who either by himself or as a member of or leader > of a gang, habitually commits or attempts to commit or abets the > commission of offences, punishable under Chapter XVI or Chapter XVII or > Chapter XXII of the Indian Penal Code (IPC), 1860. > Is there a Goonda Act? > In fact, the legislation has a long name: "The Tamil Nadu Prevention of > Dangerous Activities of Bootleggers, Drug-offenders, Forest-offenders, > Goondas, Immoral Traffic Offenders, Slum-grabbers and Video Pirates Act, > 1982." However, it's common to use the shorthand `Goondas Act' in news > bulletins, so as not to offend listeners' interest. Goonda Acts, as listed > in the IPC's chapters, include `offences against the human body' such as > murder, `offences against property' such as dacoity, and `criminal > intimidation, insult and annoyance.' > > > Till the amendment, announced last September, the act actually read, ³The > Tamil Nadu Prevention of Dangerous Activities of Bootleggers, > Drug-offenders, Forest-offenders, Goondas, Immoral Traffic Offenders, > Slum-grabbers Act, 1982.² Pretty tough on your friendly neigbourhood video > pirate, no? > > Perhaps as an aside, I want to mention other categories who have come > under the Goondas Act - > VIII. THE CRIMINALIZATION OF SOCIAL ACTIVISM > Human Rights Watch > http://www.hrw.org/reports/1999/india/India994-10.htm > According to a Dalit activist working in Tirunelveli and Tuticorin > districts, Tamil Nadu, many ³young, educated youths² were also detained > under the Tamil Nadu Goondas Act during the southern district clashes in > 1997.254 A goonda is defined as a habitual criminal, usually associated > with a criminal gang. > > According to the Policy Notes of the Prohibition and Excise Department, > Tamil Nadu Government, Video Piracy was put into the Goondas Act, because > it is an act prejudicial to the maintanence of public law and order(?) It > would be interesting to see the arguments that are marshalled by the state > in support of this. This could be an interesting extension of Mayur's > work. Also, it would be interesting to compare the debates around public > law and order with regards to the cinema, in the 'defence 'of which this > amendment was passed. I am thinking here of the work of SV Srinivas ­ 'Is > there a public in the cinema hall?' > > > Government of Tamil Nadu > Prohibition and Excise Department > Policy Note, 2005-2006 > http://www.tn.gov.in/policynotes/prohibition_excise.htm > 7. PREVENTION OF VIDEO PIRACY > Video piracy is an act prejudicial to the maintenance of public law and > order. Due to this video piracy, the film industry has been facing severe > crisis and the Producers, Distributors and Theatre owners have been put to > loss of revenue. Representatives from various associations have pleaded > for the eradication of this menace, and requested to put the film industry > on the revival path. The Hon¹ble Chief Minister ordered to amend the Tamil > Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, > Forest-offenders, Goondas, Immoral Traffic Offenders and Slum-grabbers > Act, 1982 (Tamil Nadu Act 14 of 1982) to detain the video pirates under > the said Act with a view to preventing them from acting in any manner > prejudicial to the maintenance of public order. This Act came into force > from 1st October 2004. > > TN announces sops for film industry > The Hindu, Tuesday, Sep 28, 2004 > http://www.blonnet.com/2004/09/28/stories/2004092801941700.htm > THE Tamil Nadu Government has announced a package of measures supporting > the film industry, including tightening of legislations to prevent piracy > and tax concessions and subsidies. > According to an official statement, the Tamil Nadu Chief Minister, Ms > Jayalalithaa, said that the Government would amend the Tamil Nadu > prevention of dangerous activities of bootleggers, drug offenders, forest > offenders, goondas, immoral traffic offenders and slum grabbers Act, 1982 > (Tamil Nadu Act of 14 of 1982) to include video pirates. > The Government would also stringently enforce the Copyright Act, 1957 (Act > 14 of 1957 - Central Act). This provides for penalties including > imprisonment up to three years and a fine of up to Rs 2 lakh. > The video piracy cell would also be strengthened and six more cells would > be added to the existing six cells, the statement said. > While ensuring that pirated video films are not exhibited in State-owned > transport buses, the private operators have also been given strict > instructions to not to exhibit such cassettes. > The Tamil Nadu Exhibition of films on television screen through video > cassette recorders and cable television network (Regulation) Act, 1984 > (Tamil Nadu Act 7 of 1984) would also be amended to make penalties more > stringent including providing for imprisonment up to two years and fine of > a minimum of Rs 1 lakh. > Entertainment tax applicable to Municipal Corporation areas and Special > Grade Municipalities will be brought down to 15 per cent from 25 per cent > of gross payment for new films and 10 per cent for old films, which were > earlier subject to 20 per cent. This will also be applicable to permanent > and semi-permanent theatres within a radius of 5 km. > In other areas where the tax is levied on a compounding basis per show or > week, a simple system of 10 per cent on gross payment would be introduced. > To protect the revenue of the local bodies, which receive 90 per cent of > the revenue from entertainment tax, an alternative compensation > arrangement will be made, the statement said. > Low budget films with "good themes useful for social mobilisation and > propagating good values" will qualify for entertainment tax exemption. > Cinemas can now collect maintenance charges of 50 paise for non-air > conditioned halls and Re 1 for air-conditioned ones. > The Government has granted three-year exemption from sales tax on lease > transactions of outdoor units, equipment hirers, studios, laboratories, > recording theatres, audio, video and satellite rights, which now attract > 12 per cent. It has also decided to withdraw penal action to recover sales > tax on such leases. > Rates for shooting films in various locations have also been slashed. For > Category-I locations such as colleges, sanctuaries and Kodaikanal and Ooty > lakes the charge will be cut to Rs 10,000 a day from Rs 50,000, and for > shooting at Rajaji Hall (in Chennai) the fee will be Rs 25,000 against Rs > 1 lakh charged earlier. > For Category-II locations, which include other public places, the charge > will be Rs 5,000 a day against Rs 25,000. > The State Government has also decided to grant a subsidy of Rs 7 lakh to > low-budget films with a maximum of 25 prints and length of up to 3,000 > metres. To be introduced with effect from 2003, the scheme will be > implemented at an annual cost of Rs 2 crore, the statement said.' > > > Now it seems a bit extreme to book someone under the Goonda Act for > showing films on a video coach. Lawrence has just written in to Ritika > (forwarded on to the PPHP list) to say that this amendment is currently > being challenged because the State government does not have the power to > act on a Central subject, ie The Copyright Act(?) Now, I may have got the > details of that wrong, but it certianly seems that the legality of the > amendment is currently being challenged. But the legality nonwithstanding, > the act of announcing the Goonda Act seems to have had immediate > repurcussions in Tamil Nadu, as well as ripples of approval outside the > state. Prior to 'legality'. Prior even, it seems, to enforcement. > > Video pirates vanishing > Almost all video/CD parlours in the city have closed down since their > business was thriving mainly on pirated copies of movies. As there are no > takers for pirated CDs of latest movies, the CD-writing concept has also > become defunct, says S. Vijay Kumar. > http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2004101614200300.htm& > date=2004/10/16/&prd=th& > EVEN BEFORE the police started enforcing the amended laws to curb video > piracy, the clandestine activities of pirates, flourishing in the city for > decades, have suddenly vanished. > Video parlours and compact disc shops downed shutters hours after the > Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug > Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and > Slum-Grabbers Act, 1982, was amended enabling the law enforcing agencies > to detain video pirates. > Thousands of youth involved in the CD writing business at undisclosed > centres have closed down. Omni bus/van operators have switched off > television sets since the amendments to the Tamil Nadu Exhibition of Films > on Television Screen through Video Cassette Recorders and Cable Television > Network (Regulation) Act, 1984, now provides for punishment with an > imprisonment up to two years or fine which shall not be less than Rs. one > lakh but which may be extended to Rs.five lakhs or with both. > Almost all video/CD parlours in the city have closed down since their > business was thriving mainly on pirated copies of movies. As there are no > takers for pirated CDs of latest movies, the CD-writing concept has also > become defunct. > According to the Inspector (Video Piracy), M.S.M. Abdul Rahim, Madurai was > the gateway for the circulation of pirated CDs to the southern districts. > The Meenakshi and Pondy Bazaar localities, which were notorious for the > sale of such CDs, had quit business. "We have plugged all gaps. The video > pirates know that the new law is severe and habitual offenders can also > been detained under the Goondas Act," he says. > Though the "master prints" of pirated versions originally came from > Chennai, hundreds of illegal operators made copies of such CDs. "It just > needs a computer, CD-writer and a few gadgets to make these pirated CDs. > The cost of production per CD would be sometimes less than Rs. 15," Mr. > Rahim says, adding that an elaborate plan had been chalked out to prevent > the video piracy industry from resurfacing. > Interestingly, the number of movie-goers is said to have gone up since > early October. The collection for movies such as `Vasool Raja', `Gajendra' > and `M. Kumaran son of Mahalakshmi', have gone up after a brief slump, say > cinema theatre owners. > However, police officials say video piracy cannot sustain without the > connivance of some persons in the film industry. "The original print has > to either come from the movie halls or laboratories. Some producers even > sell copyrights to foreign dealers to double their profits. However, it > boomerangs since the pirated versions land in the State hours later," says > another police official.' > > > I am left finally with a set of images, all of which seem to be linked > with the Goonda Act. > The first is of Rajnikanth and Kamal Haasan congratulating Jayalalitha. I > am remembering Rajnikanth's copyrighting/patenting(?) of his own actions > after the release of Baba. Wasn't Baba a 'political' film specifically > against Jayalalitha? (I may be completely mistaken about this.) Why is it > that the whole anxiety about copyright and piracy is playing out in such > an extreme fashion in Tamil Nadu rather than anywhere else? (Is it becuase > the state is ruled by a former film-star?) > Then the arrest of the Shankracharya and the whole sordid mess that > follows. then the killing of Veerapan. All linked now with the ubiquitous > Goonda Act. As is the figure of the Tadipaar ­ exiled from his own city. > And the figure of the video 'pirate'. > > There are linkages here that i don't want to draw. I am hoping someone > else will draw completely different ones, and clarify some of the > confusions I have about the Goonda Act. From prabhuram at gmail.com Fri Apr 8 20:37:24 2005 From: prabhuram at gmail.com (Ram) Date: Fri, 8 Apr 2005 17:07:24 +0200 Subject: [Commons-Law] =?iso-8859-1?q?On_the_Development_Agenda=3A_Mexico?= =?iso-8859-1?q?=B4s_submission_on_=22IP_and_Development=22?= Message-ID: <68752c9f050408080737203771@mail.gmail.com> Below is the submission by Mexico. UK has also submitted its own view, and this could be found at the WIPO website. -Ram > Mexico´s submission at WIPO I. - PRECEDENTS I.I. UNITED NATIONS The eradication of poverty and economic and social development constitute fundamental priorities for the United Nations. The Millennium Development Goals, derived from the Millennium Declaration, establish as a commitment for countries, "to develop a global partnership for development". Number eight of the so-called "Millennium Development Goals" comprises various tasks, among which the following stand out owing to their relationship with the world intellectual property system:  Develop further an open, rule-based, predictable and non-discriminatory trading and financial system, including the commitment to good governance of public affairs and poverty reduction, both nationally and internationally.  In cooperation with developing countries, develop and implement strategies for decent and productive work for youth.  In cooperation with the private sector, make available the benefits of new technologies, especially information and communications technologies. The States which are members of the United Nations have been able, through the 2002 Monterrey Consensus, to produce the Johannesburg Declaration on Sustainable Development and its respective Plan of Implementation which includes inter alia the conditions necessary to achieve the Millennium Development Goals, and endorse the priority of development for the international community. I.II. - World Intellectual Property Organization As an integral part of the United Nations system and aware that intellectual property is an essential element for the economic, social and cultural development of humanity, the World Intellectual Property Organization (WIPO) has for decades encouraged developing countries in the various geographical regions to establish or modernize intellectual property systems allowing their nationals to benefit from such systems. Through the WIPO Cooperation for Development Program, various activities have been developed to provide specialized legal advice and human resources training, and to send experts to work in countries which, owing to their particular features, have required it, as well as carrying out specific activities designed to create and strengthen national intellectual property systems. During the working meetings held by WIPO, the problem of the development of nations and the activities conducted by the Organization in support of developing countries have been recurrent themes, and the contributions made by the Member States have undoubtedly enriched the national and international agenda of the participants through the input of various points of view. In this context, during the meetings of the WIPO General Assemblies, held in 2004, document WO/GA/31/11 was included in the agenda and contained an official proposal from Argentina and Brazil relating to the establishment of a new program for the Organization's development. Following a brief presentation of the document and the submission of comments by other members on its content, both in favor and against, the General Assembly decided to analyze the proposal in question. Aiming to analyze the prospects for the world intellectual property system and its links to particular subjects such as development, WIPO and its Member States have held working meetings designed to clarify the role played by the Organization and bring it into line with the current requirements of global society . II. - THE WORLD INTELLECTUAL PROPERTY SYSTEM IN DEVELOPING COUNTRIES II.I. - ESTABLISHMENT OF NATIONAL INTELLECTUAL PROPERTY SYSTEMS The economic, social and cultural development which society has undergone in the past few decades, supported to a large extent by new technologies, is undeniable; even in developing countries certain sectors of the population have surpassed by far the expectations which, in relation to access to goods, services and well being, could have been foreseen fifty years previously. In most developing countries, a modern intellectual property system in line with the requirements of the current economy has been implemented only recently. The resources provided by international organizations such as WIPO or national or foreign public or private organizations have been devoted fundamentally to the establishment of national intellectual property offices and to the training of human resources required for the operation of those offices. The relevant international discussions have led to new subjects being included in national government agendas and, in addition to the traditional fields of inventions and distinctive signs, and irrespective of the maturity of the respective systems, intellectual property offices have been forced to analyze new subjects such as the protection of the knowledge of indigenous societies, and its application in various areas such as medicine, access to genetic resources and also folklore. Although most national governments have considered intellectual property to be a priority, resources are not in plentiful supply and must be used rationally even where they come from external sources. International cooperation is of fundamental importance at the regional level. The viability and success of the national systems require an international standard-setting framework based on clear, predictable and non-discriminatory rules, as well as minimum protection standards not subject to modifications resulting from the political, economic, social and even cultural changes generated by the members of the international community. II.II. - INTELLECTUAL PROPERTY AND SOCIETY IN DEVELOPING COUNTRIES In developing countries the economic and social conditions of the population and the need to provide for basic requirements such as food, health and education, make it essential to establish priorities and on occasions to disregard elements which although important for development do not satisfy immediate requirements. In this context, even in the countries in which a modern intellectual property system exists, it has not been feasible to involve society in intellectual property matters, i.e. there is no appropriate culture of intellectual property use and enforcement. The lack of knowledge of the system on the part of the population is commonly observed and, in some cases, the population considers the failure to observe the system or infringements thereof as conduct which cannot be sanctioned or is socially acceptable; for this sector the benefits derived from the intellectual property system and the use of the system as a development factor are completely alien. Lack of awareness of the system has become a cause of inefficiency as well as an obstacle to development. The sanction of conduct which infringes intellectual property is of no use, if it is not complemented by appropriate dissemination and understanding of the system. In addition, ignorance and the failure to observe the system lead to the formation of criminal groups, on occasions of a cross border nature and linked to other unlawful activities such as money laundering. III. - PROPOSAL BY MEXICO Whereas:  The development of nations should constitute an end in itself for governments and international organizations;  The Member States of the United Nations have reached a consensus establishing commitments to eradicate poverty and promote the development of nations;  Within goal number eight of the Millennium Development Goals contained in the Millennium Declaration, "to develop a global partnership for development", there exist tasks directly linked to the world intellectual property system, i.e. 1. Develop further an open, rule-based, predictable and non-discriminatory trading and financial system, including the commitment to good governance of public affairs and poverty reduction, both nationally and internationally. 2. In cooperation with developing countries, develop and implement strategies for decent and productive work for youth. 3. In cooperation with the private sector, make available the benefits of new technologies, especially information and communication technologies.  As a United Nations specialized agency and under the auspices of the WIPO Cooperation for Development Program, the World Intellectual Property Organization has conducted activities designed to establish intellectual property systems or modernize those already in existence;  Although it may be improved, an international standard-setting framework exists allowing nations to interact in accordance with a predictable and non-discriminatory system;  The resources available to the governments of developing countries and international organizations are limited and should be used rationally;  In order for the intellectual property system to be an efficient mechanism and to contribute to development its dissemination in society as a whole