Lame Posts from a Lazy Lawyer

Reading Habits

2010-11-19T21:34:00.003+05:30

Right from my childhood days, I’ve been a bibliophile of sorts…the kind who’d sneak fiction, comics et al into class and read them (this habit continued well into my college days) I also grew up in a home full of books. So, when I first saw this post at Debosmita’s blog, I thought I’d take a crack. Dear readers, please feel free to recommend books/share anecdotes in the comments section. Would be much appreciated!

Favourite childhood book?

Many….Tintin comics and Robin Hood stories in English (was introduced to Asterix only after I turned 13) and Tenida, Feluda and pieces by Mr. Shibram Chakroborty in Bengali. And “Abol Tabol” by Mr. Sukumar Ray…I think that’s the first book I had. Loved Pagla Dashu.

Feluda, illustration by Mr. Satyajit Ray

What are you reading right now?

“Myth = Mitthya” by Dr. Devdutt Pattnaik and “Indian Controversies: Essays on Religion in Politics” by Mr. Arun Shourie.

Bad book habit?

There was a time when I’d read my favorite books even on the night before an exam….did it before the ICSE exams!!!

Do you have an e-reader?

No, but I have a lot of e-books. Remember reading Mr. Dan Brown’s “The Dan Vinci Code” on my computer…finished it in one go, and the whole thing took me 9 hours.

Do you prefer to read one book at a time or several at once?

No more than two.

Have your reading habits changed since starting a blog?

I get less time to read nowadays….due to work pressures et al, more than anything else.

Least favourite book you read this year (so far)?

I’ve liked the books I’ve read so far this year…would be unfair to pick one out.

Favourite book you’ve read this year?

“The Argumentative Indian” by Prof. Amartya Sen (finished it this year).

How often do you read out of your comfort zone?

Quite often, actually.

What is your reading comfort zone?

Humour.

Can you read on the bus?

Yes, not just on the bus but whenever I’m travelling. That’s what I usually do on flights these days.

Favourite place to read?

My bed. Always been like that.

What is your policy on book lending?

Depends on the borrower, really….guess it’s like that with most people.

Do you ever dog-ear books?

Never!

Do you ever write in the margins of your books?

I use post-its if I really have to write something.

Not even with text books?

See above.

What is your favourite language to read in?

Bengali, my mother tongue, and English.

What makes you love a book?

If it’s fiction, I’d look for a nice plot, pace, character development….I’d also expect the the author to have an eye for detail and the language to be nice.

If it’s non-fiction, I’d look for original research. I’d also expect the author to clearly develop his arguments and present his analysis, if any.

What will inspire you to recommend a book?

If it’s non-fiction, I’d definitely recommend a book if I feel it has served as an eye-opener for me. If it’s fiction, it has to leave an impression on my mind. I have a habit of recommending books to people I know…especially close friends.

Favourite genre?

Fiction - humour and non-fiction - politics.

Genre you rarely read (but wish you did?)

Books on the development of various legal systems.

Favourite biography/autobiography?

“Spycatcher” by Mr. Peter Wright. The book ran into all sorts of trouble after its release. For more details, see this.

Also, “Wings Of Fire”, the autobiography of India’s former president Mr. A.P.J. Abdul Kalam.

Have you ever read a self-help book?

No….that’s a genre I stay away from.

Most inspirational book you’ve read this year (fiction or non-fiction)?

Superfreakonomics.

Favourite reading snack?

Biscuits.

Name a case in which hype ruined your reading experience

“Three Mistakes of My Life” by Mr. Chetan Bhagat. Won’t say more. Thankfully, his next wasn’t half as bad.

How often do you agree with critics about a book?

Depends on how often the critics get it right ;-)

How do you feel about giving bad/negative reviews?

Only if the book’s really really bad.

If you could read in a foreign language, which language would you chose?

I want to read Asterix, Tintin and some other works in French. Started learning the language too…haven’t mastered it yet. Hope to do it someday.

(picture taken from this website.)

Most intimidating book you’ve ever read?

Mr. Miguel de Cervantes’ “Don Quixote”…..for the size, more than anything.

(Bronze statues of Don Quixote and Sancho Panza, at the Plaza de España in Madrid.)

Most intimidating book you’re too nervous to begin?

I don’t think a book can be that intimidating.

Favourite Poet(s)?

Bengali: Mr. Rabindra Nath Tagore, Mr. Sukanta Bhattacharya, Mr. Sukumar Ray.

(Mr. R.N. Tagore (L) and Mr. Sukumar Ray (R), photos available online at wikipedia.)

English: Mr. T. S. Eliot, Mr. Robert Frost, Mr. Walt Whitman, Alfred, Lord Tennyson, Mr. Shakespeare.

Favourite fictional character(s)?

Bengali: Felu da, Tenida, Byomkesh Bakshi and Mr. Shibram Chakroborty as himself in “Debotar Jonmo”.

English: All the Asterix characters – nothing beats the spirit of those books! The irreverence with which certain power systems are treated is simply delightful. Sherlock Holmes. And of course, Don Quixote…the idealist.

Favourite fictional villain?

Shylock….is he really a villain?

(Shylock and Jessica by Maurycy Gottlieb, photo available here.)

Books I’m most likely to bring on vacation?

Anything that makes for a light reading. I have a habit of carrying my Asterix collection wherever I go.

The longest I’ve gone without reading

The whole of 2009. I stayed away from books, and a whole lot of other things. For reasons very personal.

Name a book that you could/would not finish-

I have a collection of all of Shakespeare’s works. I haven’t finished that volume yet.

What distracts you easily when you’re reading?

Work, internet and phone calls.

Favourite film adaptation of a novel?

Bram Stoker’s Dracula. Without any doubt whatsoever. Also, Patalghar. It was the first of its kind in Bengali cinema. Read more about the movie here.

Most disappointing film adaptation?

That’s a difficult one to answer.

The most money I’ve ever spent in the bookstore at one time?

Can’t really remember.

How often do you skim a book before reading it?

Rarely…have done it once or twice, but I don’t do it on a regular basis.

What would cause you to stop reading a book half-way through?

If I find it disappointing, I’ll leave it midway.

Do you like to keep your books organized?

Yes.

Do you prefer to keep books or give them away once you’ve read them?

I let people borrow my book, but I do not give them away. There’s a library of sorts at my home, and that’s where I keep my books when I am not reading them.

Are there any books you’ve been avoiding?

No, why would I?

Name a book that made you angry –

“Indian Controversies: Essays on Religion in Politics” by Mr. Arun Shourie. It exposes the manner in which religion has been used by politicians and political parties in India for their own gains.

A book you didn’t expect to like but did?

“The Kite Runner” by Mr. Khalid Hosseini.

A book that you expected to like but didn’t?

“Myth = Mitthya” by Dr. Devdutt Pattnaik. I won’t say I didn’t like the book, but I feel it could have been better.

Favourite guilt-free, pleasure reading?

Mr. Shibram Chakroborty (see this) and Mr. Jerome K. Jerome. These are two people who didn’t get their due, in my opinion. Few people could see beneath the humour. Mr. Shibram Chakroborty provides an excellent analysis of contemporary Bengal and its problems in his writings. As for “J”, he was quite the philosopher, wasn’t he?

Books I love or “the ones I can read again and again and again and…..”

Anything by the two authors mentioned above, and Mr. Satyajit Ray.
“Kamalakanter Daptar” by Mr. Bankim Chandra Chatterjee.
Byomkesh Bakshi.
Asterix.
Works of Mr. H.M. Seervai, Mr. Arun Shourie and Mr. C.R. Irani.
Mr. P. G. Wodehouse….love his works.

(Abir Chatterjee as Byomkesh Bakshi in Adim Ripu, a Byomkesh Bakshi movie by Anjan Dutt. Picture taken from this website.)

Books I love to hate:

Some works of Ms. Kamala Das and Mr. Aravind Adiga. (An aside: Has anyone read his latest article? Can anyone please explain how and why the present BJP government in Karnataka will become less corrupt if I learn Kannada? I just didn’t get his argument!)

Books that left me underwhelmed:

Nothing’s really coming to my mind right now.

P.S. I had my favourite ‘book moment’ recently, when I was present at the release of my own book, co-authored with Debosmita (a really close friend without whom this wouldn’t have been possible), recently. Now that’s one book I’m really proud of. :-)

(Photos from the book release: Prof. M.P. Singh and Dr. A.K. Poddar at the book release (top), the cover of our book and (below) me, in blue, and Debosmita, in white, at our book release.)

All my readers (especially the bibliophiles), feel free to do this tag. (Especially you, Paushali.) Just let me know as and when you decide to do this. I’d love to read your stuff too. Thanks, Debosmita, for the tag.

Celebrations

2010-11-07T22:02:00.006+05:30

This post has been published by me as a part of the Blog-a-Ton 16; the sixteenth edition of the online marathon of Bloggers; where we decide and we write. To be part of the next edition, visit and start following Blog-a-Ton.

All of this country has been celebrating this, that and everything else. Deepavali, for example. The ‘success’ of the Commonwealth Games. But do we even think about what we are celebrating? And how, and why?

Let’s begin with Deepavali celebrations, for example. Traditionally, Diwali has been considered to be the festival of lights. It is about the awakening of the inner ‘awareness’ ….. অন্তর মম বিকশিত করো ....that’s supposed to be the underlying philosophy.

(Photos taken by me.)

Its also about the worship of Goddess Lakshmi, the goddess of prosperity and wealth. But, is Deepavali about the celebration of loud, weird sounds and noises? Is it about the celebration of wealth and prosperity, or a vulgar display of it?

(Photo taken by me.)

In Kolkata, sound pollution has been a menace, to say the least. And over the last few years, this menace has acquired demonic proportions, to say the least. I wonder, why can’t we have fireworks without the sound? I wonder why some people feel that the celebrations would somehow remain incomplete if these crackers aren’t used. What’s so special about them??!!! I have heard about babies dying due to shock upon exposure to such loud noise. Anyone with nerve and heart problems would struggle to survive those 2-3 days! There is a law prohibiting the sale and use of certain crackers that cause sound pollution, but hardly anyone seems to care!

The second problem that I have is with the vulgar display of wealth (ill-gotten, more often than not) that comes to the fore during the festivities and the celebrations. I was reading this article By Mr. Chetan Bhagat (available here) where he talks about the fact that wealth, even if ill-gotten, often tends to increase a person’s stature in society. And these celebrations often provide an excuse to flaunt one’s wealth. There’s hardly any real sense of joy involved, its just about pampering one’s ego at the end of the day. I also feel like arguing that this is one of the reasons why we see the so many weddings making it to the front pages of newspapers nowadays, simply because of the flaunting of wealth and purchasing power that’s involved. That’s for another day and another post, though.

People also tend to ignore other things like the illegal use of child labour in the fireworks industry when they are buying their stuff, even though they are aware of the use of such child labour. Guess the attitude of an entire generation of Indians towards their fellow beings need to change, and change fast.

(Picture taken from this website.)

What irks me the most is the fact that even though Deepavali, if celebrated in the right spirit, has the potential to be one of the most beautiful festivals in the world, it has become a festival that is dreaded now by people who are ill, or their family members. Like this friend of mine who made sure her father, a heart patient, spent an extra two days in a hospital in case things went wrong due to noise.

Guess the attitude of an entire generation of Indians towards their fellow beings need to change, and change fast.

P.S. Here’s wishing my very own didi a very happy Bhratridwitiya. Hope all you readers had a very nice Deepavali.

(Picture above taken from this website.)

The fellow Blog-a-Tonics who took part in this Blog-a-Ton and links to their respective posts can be checked here. To be part of the next edition, visit and start following Blog-a-Ton.

The Return

2010-09-04T21:47:00.007+05:30

This post has been published by me as a part of the Blog-a-Ton 14; the fourteenth edition of the online marathon of Bloggers; where we decide and we write. To be part of the next edition, visit and start following Blog-a-Ton.

The following is an excerpt from an unpublished paper that had been written by me in 2007. While I, personally, no longer subscribe to some of the views put forth in this post, some of the points below should provoke thought.

The term “indigenous” can have various imports in different spectra of usage. The Concise Oxford Dictionary defines it as - “Indigenous: adj. a. (esp. flora and fauna) originating naturally in a region. b. (of people) born in a region.”(The Concise Oxford Dictionary, 692, (9th Edn., 1995.) As we can see, the dictionary meaning of the word ‘indigenous’ speaks only about the flora and fauna originating naturally in a region or the people born in a particular region. However, in common parlance, this word is used to convey a slightly different meaning. More often that not, it is used to refer to flora and fauna originating in third world countries and their appropriation by locals, using their own traditional method & practices. An example of such a combination can be found in the use of the ‘Hoodia’ cactus as a hunger suppressant by the traditionally living ‘San’ people of the Kalahari Desert.

(The Hoodia cactus - photos taken from the internet.)

The purpose of this post is primarily to critique and analyze the several ‘Intellectual Property’ norms & their functioning with respect to indigenous interests, and in that regard, it is necessary to evolve and develop a proper working definition of ‘indigenous interests’ in flora and fauna first. This definition should primarily depend on two points – the knowledge itself, coupled with the use of such knowledge on one hand and the antiquity of such customary usage on the other. A definition similar to this found recognition in the aforementioned ‘San’ example. In this case, the Council for Scientific and Industrial Research (C.S.I.R.) had succeeded in isolating Hoodia’s hunger suppressing chemical agent, P. 57, and had licensed Phytopharm to further develop and commercialize it after patenting the chemical. It was thought to be a cure for obesity, being a naturally occurring hunger suppressant. However, the rights of the San people were ignored completely, even though they had known this for centuries and had used it for similar purposes. In 2001, the San Council took up this issue with the C.S.I.R. and ultimately succeeded in establishing their claim. As a result, a profit sharing agreement was entered into, and the South African San Council now gets 8% of the profits from the diet drug derived from the Hoodia Cactus.

(San on a hunting trip – photo taken from the internet.)

This example also highlights how instances of the phenomenon that is popularly known as biopiracy are on the rise throughout the third world, establishing a worldwide trend in which the ultimate beneficiary is almost always a first world corporation or government which has violated the rights of an indigenous group with impunity. Other examples of this would be the Neem tree case and the patenting of the Enola bean. (Both instances are discussed later.) The turmeric case is yet another example. In fact, this problem has even led to the coining of a new term, biopiracy. This term, in a looser sense, covers the various forms of power imbalance between richer and poorer countries, which often arise out of the third world countries’ tendency towards higher biodiversity and indigenous knowledge of natural resources, and the felt need of corporations based in first world countries (backed by a powerful nation state) to exploit and appropriate such indigenous biodiversity and knowledge systems. Such appropriation is normally carried out by means of patents, and the indigenous people do not usually receive compensatory payments.

The question that naturally arises in this context is: why do giant trans-national corporations feel the need to indulge in biopiracy? The answer to this depends squarely on two points. Firstly, the third world countries, with their enormous biodiversity and thriving indigenous cultures, provide these corporations with a fertile hunting ground. In most cases, indigenous knowledge is not properly documented but is handed down from one generation to another orally. Thus, the knowledge is in existence but is not documented. This enables corporations to get patents easily by claiming that such knowledge does not amount to ‘prior art’ as required by the patent laws in place in the developed world. In fact, in the Neem tree patenting case, one of the arguments adopted by the pharmaceutical company that had patented ‘Neem’ was based on this. The company argued that as traditional Indian knowledge of the properties of the Neem tree had never been documented or published in any academic journal or textbook, such traditional or indigenous knowledge did not amount to a ‘prior art’.(See this for an understanding of the concept of prior art.)

(Neem leaves – photo taken from the internet.)

Secondly, the ground realities of medicinal and pharmaceutical research demand that corporations engage in biopiracy in order to reduce research and development costs, thereby, maximizing profits. In a typical drug research scenario, investigators often have to encounter thousands of failures before tasting success. However, when coupled with indigenous knowledge, success rates often increase drastically. The Rural Advancement Foundation International reports that random testing has a success rate of only 1:10,000. This gives it some of the economic features and characteristics of a lottery or a jackpot, wherein success rates are low, but the fruits of success yield rich dividends. Economic returns are often very high, and can even be wildly out of proportions with the invested effort. As has been mentioned before, success rates improve drastically when testing is coupled with indigenous knowledge. The above-mentioned report estimates that success rates can improve up to about 1:2 when indigenous knowledge is taken into account. The revenue generated by such successful testing, however, remains the same. As a result, profits tend to increase drastically, because of a huge decline in research development expenditure. This provides a strong incentive to existing pharmaceutical giants to indulge actively in biopiracy.A news report published in 1998 has shown that 56% of the top 150 drugs in use within the U.S. are based on chemicals derived from plants, and 40% of all Western pharmaceuticals products have been found to contain Asian plant extracts. Another study conducted in 1994 found that of the 199 drugs developed from higher plants, 74% were discovered from a pool of traditional medicine. A workshop on traditional medicine in Bangkok had also come to the conclusion that there is in existence a world market for herbal medicines estimated at $43 million, with an annual growth rate of 5-15 %. These figures tell us that while the potential rewards for the third world are enormous, the temptation to commit biopiracy is also great. One only needs to add to this the fact that markets are reaching saturation levels, and that there is still no adequate therapy for about 75% of the nearly 2,500 recognised medical conditions. (See this.)

The problems do not stop just here, however. More often than not, the corporations in question have the tacit support and approval of their respective domestic governments, who have put in place patent regimes (also termed ‘Intellectual Property' laws) to support biopiracy. A case in point is that of A. 102 of the U.S. Patent Act, 1952, which refuses to recognize or acknowledge technologies, methods and knowledge in use in other nation states as a ‘prior art’. According to this provision, public use or sale in a foreign country does not constitute a 'prior art’ in the eyes of the U.S. patent regime. Since patents are supposed to be awarded for new inventions or innovations only, denial or non-recognition of a ‘prior-art’ in other countries allows patents to be taken out on knowledge already in use in a foreign country. This has been one of the methods adopted to facilitate biopiracy, especially within the U.S. The patenting of a technique to extract anti-fungal agents from the Neem tree serves as a classic example. This technique has been in use in India for centuries. However, this was conveniently ignored by the American Government when it decided to grant a patent on the anti-fungal properties of the Neem tree, and it made good use of the faulty provisions in its intellectual property rights laws to promote biopiracy.

(Neem tree – photo taken from the internet.)

And, nothing illustrates the problems that are caused by biopiracy than the patent on the Enola bean. As a result of the patenting of the Enola bean, export sales of the bean dropped over 90% and more than 22,000 Enola bean farmers of Northern Mexico lost their only source of livelihood.

(The Enola bean – photo taken from the internet.)

In fact, at this point it can be said that these provisions have been designed deliberately to allow for biopiracy. One only needs to look at the history of U.S. patent laws for confirmation.In fact, when the modern system of I.P.R.s first emerged in the nineteenth century, they needed to fulfil only a national criteria. This practice, which is denounced as piracy today, enabled the first world countries to reach their present stages of development. Reciprocal recognition came later, and it was given a concrete shape in the Paris Industrial Property Union of 1883, and the Berne Copyright Convention of 1886. It is interesting to note that the U.S. had refused to join the Berne Convention at that point of time in order to protect low cost publishing in the country.For the first hundred years after the creation of a framework for reciprocity with respect to intellectual property rights, the U.S. refused to respect international intellectual property rights, claiming that it was freely entitled to imitate foreign works in furtherance of its social and economic development.

The TRIPS system is also to blame for this. The TRIPS draft does not contain a detailed account of the conditions required for granting patents. It only specifies three basic criteria for conferring patent rights: novelty, inventive step and applicability. The emphasis is on protecting such rights and enforcing them. Article 27 of TRIPS is based on the draft Patent Harmonization Treaty prepared by WIPO, which was abandoned in 1991. From this draft, provisions were borrowed selectively so as to favour patent owners. This emphasis on safeguarding the right of patent holders has meant that Article 27 does not define its three criteria, or for that matter, clarify the difference between a discovery and an invention/innovation. The result has been a commodification of traditional knowledge.

In fact, such overt protection to corporations indulging in biopiracy has given rise to allegations, fears & speculation that the first world countries have formulated a policy to exploit the entire world’s biodiversity as a part of their expansionist policies. Weaker third world nation states have been coerced into joining the W.T.O. and the TRIPS arrangements, thereby opening up their markets and economies for exploitation, while they are forced into implementing ‘product patent’ systems in their legal systems. This, again, ensures that the perpetrators of biopiracy have access to the third world’s biodiversity while at the same time protecting themselves from local competitors who are wiped out of these economies. This can be better appreciated if one goes deeper into trade agreements such as the W.T.O. One realizes that these agreements have been drafted in order to ensure that large corporations get to exploit the markets in poorer countries. This has been the result of a realization that there are vast markets in the third world, which are still to be exploited. Another factor has been the saturation levels reached in domestic markets in first world countries. The first world has always known that its prosperity would depend upon the successful exploitation of the underdeveloped regions of the world, and to this end, they have formulated suitable trade agreements. In fact, such agreements have very little to do with ‘free-trade’ as it should exist, but are designed to promote exploitation by corporations, thereby allowing them to do business freely in weaker countries. This is nothing but another form of protectionism in which giant corporations are protected from the actions of the people of the third world, against whose interests they have been acting.

The answers to all the problems discussed above can be found by implementing suitable legal/policy measures. Are our parliamentarians willing to act, though? More importantly, are they willing to, and capable of, understanding that this is the return of colonialism? In its latest avatar?

The fellow Blog-a-Tonics who took part in this Blog-a-Ton and links to their respective posts can be checked here. To be part of the next edition, visit and start following Blog-a-Ton.

Cricket in Afghanistan: An Opportunity Lost?

2010-08-21T11:00:00.001+05:30

How many of us are familiar with the rapid progress made by Afghanistan’s national cricket team? Their’s has been an inspirational story, one that hardly finds mention in the popular media of today. In 2001, the year they formed the cricket board, Afghanistan was 90th in the world, the worst at the time. By 2010 they had made it to the World Twenty20. Their performance in the world meet was also quite commendable. What is more amazing is that they achieved this even though there was a real lack of proper infrastructure to support and nurture their talent. Most of the players first took to the game in refugee camps in Pakistan, a case in point being Mr. Hamid Hassan. (See this.)

Mr. Hamid Hassan – photo taken from Cricinfo.

Most of the players usually played the game on bumpy, dusty, uneven pitches. They used bricks for wickets, old, cracked bats and tennis balls. And they still made it to World Twenty20. Support for and popularity of the game is also spreading in Afghanistan. Tim Albone, one of the makers of “Out of the Ashes”, a documentary chronicling the rise of Afghanistan’s national cricket team, had this to say about the team's triumphant return to Kabul: "Soldiers fired guns in the air in celebration, people hung out of windows of cars and screamed around the city's streets and the players were treated like heroes. The next day I left Jalalabad for Kabul. I was travelling in a car with only a driver. On the trip we came across some police who stopped us; in the road were blood stains and spent bullet cartridges - only minutes before, we were told, the police had been in a gun battle with the Taliban, some had been killed. It was a lucky escape." (See this.) This should be of some interest to India, more so because it is now trying to increase its presence in Afghanistan and capture popular imagination.

Members of Afghanistan’s national cricket team in action – photo taken from Cricinfo.

What is worrying from the Indian point of view is that right now, cricket in Afghanistan is heavily dependent on the support that it receives from Pakistan. For example, Mr. Rashid Latif, a former captain and wicketkeeper of Pakistan’s national cricket team, had recently been appointed the batting coach of Afghanistan’s national cricket team. Afghanistan’s national cricket team is currently coached by Mr. Kabir Khan, a former fast bowler who once played for Pakistan’s national cricket team. Mr. Latif’s first training camp will be in Abbottabad, near Islamabad. (See this.) There is no Indian involvement in the development of cricket in Afghanistan. This means that the rogue state of Pakistan gets one more tool to capture the Afghan popular imagination. Public memory being fickle, people will soon forget that it was the Taliban supported by Pakistan that had brutally outlawed all sporting activities in that troubled country.

The BCCI, meanwhile, has again decided that it is just not interested in furthering national interest. Mr. Sharad Pawar will find time to replace one scamster with another in the governing council of IPL, and he will be busy wooing the PCB to ensure that Mr. John Howard is kept away from the ICC. He will, however, do nothing to ensure that India that India has a stake in the development of cricket in Afghanistan. This would have ensured that India gains a reputation as a friendly country, eager to participate actively in the reconstruction of Afghanistan. India itself has been the recipient of a number of such overtures from the erstwhile USSR, during the 1960s and the 1970s. And the BCCI, being the richest cricketing body in the world, was ideally placed to promote cricket in Afghanistan by providing infrastructure and other facilities. It could have, for example, invited Afghan teams to participate in India’s domestic cricket tournaments and opened the doors of the National Cricket Academy to talented youngsters from that country. It could also have scheduled a series of games with Afghanistan’s national cricket team, keeping in mind the fact that their coach had gone on record requesting Asian countries for more games. (See this.) Finally, it could treat cricketers from Afghanistan (and Ireland, to promote cricket in that country teeming with talented but under-paid cricketers) on a par with domestic players. That should help them gain more exposure in the shortest format of cricket and provide them with an opportunity to earn a decent livelihood. However, the BCCI is just not interested in doing anything that will promote cricket in Afghanistan, or our national interest, it seems. (For a related post on the BCCI and its lack of interest in anything but its own commercial interests, see this.)

Note: This article was previously published here.

Wish - (Blog-a-ton 12)

2010-07-10T20:48:00.002+05:30

This post has been published by me as a part of the Blog-a-Ton 12; the twelfth edition of the online marathon of Bloggers; where we decide and we write. To be part of the next edition, visit and start following Blog-a-Ton.

“He tried to gather his thoughts together, but failed. The drought would mean a failure of his crops, and would bring with it financial ruin for him and his family. He could not bear to think of the shame that would come with his failure to repay the village money lender. And then he saw the bottle of pesticide, half empty. He had bought the most expensive brand of pesticide this year, hoping and praying for an excellent harvest that would take him out of poverty forever. And he realized that the potent pesticide would be an answer to his final problem. He knew then what his last wish was, the Indian farmer.”

The problems with agriculture in India are many – inadequate credit facilities for farmers, markets that are controlled by speculators, little or no support from state governments, lack of storage facilities…the list is endless. Prof. Amartya Sen once commented that if all the bags containing food crop that is rotting in India’s go-downs are put together, it would be enough for humanity to build a staircase from the earth to the moon. So one can presume that lack of foodgrains isn’t an issue, problems arise because they aren’t reaching the poor, including those who grow such crops.

More than 17,500 farmers a year killed themselves between 2002 and 2006, according to experts who have analyzed government statistics. In 2006, the state of Maharashtra, with 4,453 farmers’ suicides accounted for over a quarter of the all-India total of 17,060. According to government data, over 5,000 farmers committed suicide between 2005-2009 in Maharashtra, while 1,313 cases were reported by Andhra Pradesh between 2005 and 2007. In Karnataka the number stood at 1,003, for the period 2005 - 2009. In the last four years, cases there were about 905 cases in Kerala, 387 in Gujarat, 75 in Punjab and 26 in Tamil Nadu. In April 2009, the state of Chattisgarh reported that 1,500 farmers committed suicide due to debt and crop failure. Farmers often have to take loans from money lenders because of a lack of alternatives, and if the crops fail, they are left with no choice but to commit suicide.

(The table above was published in the Hindu. The link is given below.)

For a better understanding of the problems related to farmer suicide, see this, this and this.

The fellow Blog-a-Tonics who took part in this Blog-a-Ton and links to their respective posts can be checked here. To be part of the next edition, visit and start following Blog-a-Ton.

Gender Stereotypes and Me (Of All People!!)

2010-07-04T19:27:00.001+05:30

A couple of days back, yours truly was tagged in a post on gender stereotypes by a fellow blogger who blogs here. Her post was about trying to prove that a girl could be a girl without being unneccesarily girly about it, and she requested me to try and come up with something similar (for the opposite sex, of course!) and after due consideration and deliberation, I decided to give it a try. (When else can a guy do when he’s egged on by a fellow blogger belonging to the opposite sex??) So, what follows is a attempt to list out a few things which I do, but which guys aren't supposed to. Proved to be one hell of a task, the making of this list!!

1. I have a penchant for crying out when in pain, especially when I am in the company of people I’m close too. (But RF does it too, as does C Ronaldo and a host of other people….so I doubt that counts anymore.)

2. I wash my clothes once every week. (Because I’m living all by myself in Bangalore.)

3. I wash my dishes every night. (For the reason given above.)

4. I clean up the house every week. (Again, for the reason given at point 2.)

5. And yes, I clean up the loo too, all by myself, week after week! (Guess why??)

So then…that’s a list of my ‘sins’ if you will. And now, after reading it all, spare a thought for me folks. If doing a ‘girly’ task can be as embarrassing for a guy as is depicted in “Asterix and Son” (picture below, copyright Uderzo), imagine how difficult it can be confessing doing them!!

P.S. I tag Debosmita, Sayak and Kamayani. Hope they too will confess to their crimes!

P.P.S. This was initially started by IHM here.

Escape - (Blog – a – ton 10)

2010-05-01T22:09:00.004+05:30

This post has been published by me as a part of the Blog-a-Ton 10; the tenth edition of the online marathon of Bloggers; where we decide and we write. To be part of the next edition, visit and start following Blog-a-Ton.

News that may have escaped our attention during the IPL and the ensuing ‘IPLGate’:

a) Political violence in West Bengal (see this);

b) Pakistan’s demand for Kasab (see this and this);

c) News that India and Pakistan were very close to an agreement/accord on J&K (see this)

d) A tactical shift in the Central Government’s anti-Maoist policy (see this)

As for the IPL controversy itself, I would like to make a few points.

The BCCI is a private body and that makes the IPL a private tournament too. Yet, when they create franchisees, and name them after cities, they expect people from those cities to support “their teams” wholeheartedly. What they do not want us to realise is that this tournament is essentially a competition between different corporates, interest groups that have very little to do with the welfare of the regions or the people their teams are supposed to represent.

Take the example of KKR. A group of very private people sitting in Mumbai decide to create a franchisee named after Kolkata, and then they decide to assign certain rights related to this franchisee to an actor who also happens to live in Mumbai. Apparently, it is the “team from Kolkata” in a private tournament. And what is the contribution of this team to cricket in Kolkata/Bengal?

In 2008, it treats Bengal’s highest wicket taker in domestic competitions, Ranadeb Bose, very shabbily – he is dropped from the squad midway through the tournament, ostensibly to cut costs.

In 2009, it strips another very fine player of the captaincy and pushes him around in the batting order – once the tournament is moved to SA. At about the same time, it tries to drop the word ‘Kolkata’ from the team’s name so that it can appeal to a larger fan base. This is done when there are no home games in Eden. Once IPL comes back to India, we hear no more of the plan to drop Kolkata from the name of the team.

And what do we have when this team takes on a team named Mumbai Indians in the IPL? A cricket match between Red Chillies Entertainment team and a Reliance Industries team…a simple fact that often escapes our attention too!! But then, one are more blind than those who refuse to see.

I will also propose an alternate model to the IPL. Get all the teams who represent the various states to participate in an IPL like 20-20 tournament. It should be just as popular, since people are willing to support any team that they perceive to be representatives of their region. This will ensure that the tournament does not meet the fate of ICL. It will also benefit the domestic players uniformly, not just those who play international cricket or are on the fringes of the national team. The ONLY people who will lose are those running the BCCI- there will be no money from the sale of franchisees for them. May be that’s just why they chose the IPL model instead?

The fellow Blog-a-Tonics who took part in this Blog-a-Ton and links to their respective posts can be checked here. To be part of the next edition, visit and start following Blog-a-Ton.

Fool - (Blog- a- ton 9)

2010-04-03T22:15:00.006+05:30

This post has been published by me as a part of the Blog-a-Ton 9; the ninth edition of the online marathon of Bloggers; where we decide and we write. To be part of the next edition, visit and start following Blog-a-Ton.

How many of us have ever wondered about the role played by the mass media in shaping pulic opinions and government policies in any major democracy in today’s world? And, the manner in which the media functions and the issues it chooses to focus on? While this is not something that has bothered the layman too often, it has been the subject of a number of academic studies by various distinguished individuals. Mention must be made of Walter Lipmann, Charles Merz, Noam Chomsky and Edward Herman in this context.

Walter Lippmann was a journalist, a media critic and a philosopher who tried to understand the tensions between liberty and democracy in what according to him was a complex and modern world. His broad views on this can be found in his seminal work, Liberty and the News (1920).

Lippmann analysed newspaper reports of the time and detected many factual inaccuracies in them. For example, he and Charles Merz, in a 1920 study entitled A Test of the News, stated that The New York Times' coverage of the Bolshevik revolution was biased and inaccurate. And, reacting to the apathy of the general public towards such factual inaccuracies, Lippmann concluded "the mass of the reading public is not interested in learning and assimilating the results of accurate investigation." Citizens, he wrote, were too self-centered to care about public policy except as pertaining to pressing local issues.

The basic problem of democracy, he wrote, was the accuracy of news and protection of sources. He argued that distorted information was inherent in the human mind. People make up their minds before they define the facts, while the ideal would be to gather and analyze the facts before reaching conclusions. By seeing first, he argued, it is possible to sanitize polluted information. Lippmann argued that seeing through stereotypes subjected us to partial truths. Lippmann called the notion of a public competent to direct public affairs a "false ideal." He compared the political savvy of an average man to a theater-goer walking into a play in the middle of the third act and leaving before the last curtain.

So how does one solve this problem? Lippmann advocates the creation/existence of an elite/super-class of rulers who should be better informed than the ordinary masses and would have the ability to perform the complex tasks that are required of a person/group entrusted with the running of a modern society or democracy.

Prof. Chomsky takes off from where Lippmann left. His argument is that in today’s societies, power really is centered in the hands of an elite, much like the one Lippmann may have inadvertently advocated for. For Chomsky, there really isn’t any democracy, because the choices that are offered to the people are in fact very limited, based in a very narrow spectrum. And, as he explains in his book Manufacturing Consent: The Political Economy of the Mass Media, the mass media fits in perfectly into the system. He sees the private media as a businesses interested in the sale of a product — readers and audiences — to other businesses (advertisers) rather than that of quality news to the public. Describing the media's "societal purpose", Chomsky writes, "... the study of institutions and how they function must be scrupulously ignored, apart from fringe elements or a relatively obscure scholarly literature".

Chomsky’s arguments can be summarized thus:

The sheer size, concentrated ownership, immense owner wealth, and profit-seeking imperative of the dominant media corporations could hardly yield any other result. It was not always like this. In the early nineteenth century, a radical British press had emerged which addressed the concerns of workers. But excessive stamp duties, designed to restrict newspaper ownership to the 'respectable' wealthy, began to change the face of the press. Nevertheless there remained a degree of diversity, even in postwar Britain. There existed radical or worker-friendly newspapers such as the Daily Herald, News Chronicle, Sunday Citizen etc, and papers like these have completely disappeared now. This has been the trend, by and large, in most major democracies in the West.
Since mainstream media outlets are either large corporations or part of conglomerates, the information presented to the public will be biased with respect to these interests. Such conglomerates frequently extend beyond traditional media fields, and thus have extensive financial interests that may be endangered when certain information is widely publicized. According to this reasoning, news items that most endanger the corporate financial interests of those who own the media will face the greatest bias and censorship. The media build up in UK prior to the Iraq War can be cited as an example here. Other examples would be Colonel Gaddafi or Slobodan Milosevic. This line of thought and reasoning also explains mainstream reporting of environmentalists as 'eco-terrorists'. The Sunday Times ran a series of articles in 1999 accusing activists from the non-violent direct action group Reclaim The Streets of stocking up on CS gas and stun guns.
Most newspapers have to attract and maintain a high proportion of advertising in order to cover the costs of production; without it, they would have to increase the price of their newspaper. There is fierce competition throughout the media to attract advertisers; a newspaper which gets less advertising than its competitors is put at a serious disadvantage. Advertising, again, comes from a few sources/ sectors and if a media house acts as whistleblower by exposing certain malpractices, it will do so at the cost of losing advertising revenue from this sector.

In order to know about Prof. Chomsky’s arguments about politics, big business and the mass media in detail, one can read this and this.

But all this is a Western phenomena, with no relevance to India, right? Surely, our people are better informed and the media more vibrant, independent and honest, no?

A few questions might help bring out the answer.

1. How many of us know that that there is small tribe, 8,000 strong, whose life, livelihood and religion are threatened by a mining giant? (For details, see this.)

2. How many of us have read about the starvation deaths that happened in West Bengal recently, and thought of them as isolated incidents? (For details, see this article and the video below.)

3. And how many of us know who’s hit the maximum number of sixes in this year’s IPL?

So….who’s the fool now?? In this land of ours??

The fellow Blog-a-Tonics who took part in this Blog-a-Ton and links to their respective posts can be checked here. To be part of the next edition, visit and start following Blog-a-Ton.

Time Travel - (Blog – a – ton 8)

2010-03-06T21:02:00.013+05:30

This post has been published by me as a part of the Blog-a-Ton 8; the eighth edition of the online marathon of Bloggers; where we decide and we write. To be part of the next edition, visit and start following Blog-a-Ton.

About a year or so back, a friend of mine had approached me to help him raise funds for an NGO for which he was working. They wanted to start a healthcare facility in a small village in Purulia – Bhalopahar. The place, according to him, was in dire need of such an institution as the state machinery that was supposed to provide the same was on the verge of collapse. A few months later, when the small clinic was finally up and running, my friend invited me to the place. I accepted it readily, hoping that a trip to a quaint little hamlet would do my spirits a world of good.

Once I reached the place, however, I was in for a rude shock. The place seemed like it had come straight out of the pages of some history book…..and I felt like a journeyman who had travelled back in time; back into the dark ages! There was no electricity, drinking water, food…..no roads, no means of connecting these places with the outer world. For the people of the village (and the entire block, and most of the district) telephones and internet were stuff that dreams were made of…..it was not their reality. Reality for them meant poverty, and a daily struggle for existence. This report has described the state of affairs in the region succinctly.

This situation got me thinking…..and I realized that there’s more to the tribal uprisings taking place than meets the eye. The Maoists are only a part of the problem – they are not THE problem. The real issues at hand are state apathy and greed. (I must make this point here: I am not a Maoist sympathizer, nor am I someone who supports violence in any form whatsoever. One has to realize that all the parties involved in the conflict(s) are, at the end of the day, Indians, and for that reason alone, violence must be avoided at all costs. But Mr. P.Chidambaram wants a disclaimer from every person who is critical of the stated position of the Government of India, so here goes. But more on P.C. later.) As Mr. S.S. Ray summed it up recently, “Tribal people in this country have been historically exploited. Despite living in an area that has a large concentration of natural resources, they have never received the fruits of such resources. I have to accept that this was the case even when I was the chief minister, and it has continued through the Left Front’s rule.” (Mr. Siddhartha Shankar Ray was the Chief Minister of West Bengal from 1972 to 1977 and the Governor of Punjab from 1986 to 1989. He is widely credited with ending the Naxalite violence in Bengal in the seventies and the Khalistani movement in Punjab in the eighties. For his views on solving the present crisis, and how he tackled the previous one, read this report.)

A case in point would be the exploitation of the Dongria Kondh at the hands of the Government and the mining giant, Vedanta. The low, flat-topped hills of south Orissa have been home to the Dongria Kondh long before there was a country called India or a state called Orissa. The Kondh watched over the hills and worshipped them as living deities. Now these hills have been sold for the bauxite they contain. For the Kondh it’s as though god has been sold. (For details, see this article by Arundhati Roy.) If the flat-topped hills are destroyed, the forests that clothe them will be destroyed too. So will the rivers and streams that flow out of them and irrigate the plains below. So will the Dongria Kondh. So will the hundreds of thousands of tribal people who live in the forested heart of India, and whose homeland is similarly under attack.

And the effects of such wanton destruction (or development, as Mr. P.Chidambaram prefers to call it) are already being felt by many tribal populations across India. Tribals living in the forests/villages in and around Phuldomer, near the mining sites of Vedanta Aluminium, are already feeling the heat. An Amnesty International Report has found that an alumina refinery in eastern India operated by a subsidiary of mining company Vedanta is causing air and water pollution that threatens the health of local people and their access to water. In this context, Amnesty International UK director Kate Allen had this to say: "People have a right to water and to a healthy environment but Vedanta has failed to respect these rights in Orissa. Villagers were given scant and misleading information about the potential impact of the alumina refinery and mining project…..They are living in the shadow of a massive refinery, breathing polluted air and afraid to drink from and bathe in a river that is one of the main sources of water in the region." The report also quotes a local tribal woman as saying that now the rivers are so polluted that the water cannot be used for bathing and drinking. "Both my sons have had rashes and blisters," she said. Similar stories could be heard from everyone in the region. (For more on the report, see this and this.)

A tribal woman with her children in Dantewada, photo taken from this article.

And its not like we do not have laws to make sure that a project is environmentally benign before it is given the go ahead. An Environment Impact Assessment is supposed to be done before a project is given an environmental clearance, and a public hearing is also supposed to take place – ostensibly to take into account the views of the local people who might be affected adversely by the project. Sounds good on paper, no? A democratic country providing for peoples’ participation by conducting public hearings? This is what actually happens! A mockery of a hearing, followed by a finding, almost always, in favour of the corporation.

And its not like such atrocities go unnoticed – in fact, the Church of England recently sold its £3.8m stake in Vedanta Resources, over concerns about its human rights record. "We are not satisfied that Vedanta has shown, or is likely in future to show, the level of respect for human rights and local communities that we expect," said the church in a statement, adding that maintaining investments in Vedanta "would be inconsistent with the church investing bodies' joint ethical investment policy". The church is not the first organisation to disinvest from Vedanta on ethical grounds. In 2007, the Norwegian government sold its $13m stake in Vedanta, saying: "There is little reason to believe that the company's unacceptable practice will change in the future." In addition, Martin Currie Investment Management sold its £2.3m stake last year, and BP's pension fund reduced its holdings in Vedanta because of "concerns about the way the company operates." (See this and this for details.)

An Amnesty International protest outside Vedanta HQ in London. Photograph: Lewis Whyld/PA, available here.

And if Vedanta has created such a stir across the globe, why are the Indian authorities silent? Especially when the affected population is Indian? Is it because Mr. Chidambaram, the man in charge of the anti-maoist operations (which, critics allege, is just a ploy to force the tribals into submission, so that Vedanta and other corporations can mine peacefully – see this) was once a director on the Board of a Vedanta company, a post from which he resigned in 2004 before assuming charge of the Ministry of Finance? “What are we to make of the fact that, when he became finance minister, one of the first clearances he gave for FDI was to Twinstar Holdings, a Mauritius-based company, to buy shares in Sterlite, a part of the Vedanta group?”

The tragedy of India today is that such linkages are not limited to only one company or one instance – they are the rule rather than the exception. What we really need is a government that cares….for its people. What we have instead is a corrupt government intent on serving only the powerful, and a militia that would only want more government atrocities, because that in turn would lead to a swelling of its ranks. The poorest of the poor….the adivasis and the tribals, are caught in a no man’s land – between the devil and the deep blue sea. I’m of the view that Mr. S.S. Ray’s model is the only one that might work in this scenario – instead of sending in corporate giants like Vedanta, we would do well to send in NGOs and missionaries like the Ramakrishna Mission instead; if anything, they definitely have a better human rights record!! And they don’t make tall claims about working with local communities and the like, (see this, for example) they actually do the work – silently, without much of a fuss.

The fellow Blog-a-Tonics who took part in this Blog-a-Ton and links to their respective posts can be checked here. To be part of the next edition, visit and start following Blog-a-Ton.

In memory of a poor soul…

2010-02-24T09:33:00.006+05:30

I will buy with you, sell with you, talk with you,
walk with you, and so following, but I will not eat
with you, drink with you, nor pray with you….

Recently, an interesting story in a couple of newspapers (see this and this) caught my eye. Now, why do I find it interesting? Isn’t it but normal that two businessmen will strike deals that benefit both? The answer, on the face of it, is yes. But then….these two were not ordinary businessmen. The first is a man who is counted as one of India’s leading film stars. And, he is also a Muslim man, a Pathan, who married a Hindu girl by the name of Gauri. The second is one of Rajasthan’s leading industrialists (he is widely rumoured to be a satta don, too) who is no stranger to controversy. He is also a man who is accused of murdering Rizwanur Rehman (The official CBI chargesheet says he is accused of abetment to suicide, and not murder, but this is possibly because the evidence to incriminate the Todis had already been destroyed by the Kolkata Police) for doing just that which the first man had done – marrying a Hindu girl in spite of being a Muslim man. The only point to be noted here is that the girl, Priyanka Todi, happened to be his daughter.

Rings a bell, does it? Rizwanur Rehman and his tragic death? Happened more than two years back, and public memory…..takes no more than a couple of months to fade, no? So, here’s a refresher – Rizwanur was found dead under mysterious circumstances somewhere along the railway tracks in the Ultodanga – Patipukur – Dum Dum stretch in Kolkata, barely a few days into his marriage with Priyanka Todi. (The two had met, fallen in love and tied the knot.) His family alleged that there was immense pressure on Rizwanur – from the topmost echelons of the state police, no less – to annul the marriage. The accused included the then Police Commissioner, Mr. Prasun Mukherjee, as well as former deputy commissioner Ajoy Kumar, former DC Gyanwant Singh, ACP Sukanti Chakraborty and sub-inspector Krishnendu Das. From September 1-17, Rizwan was summoned by cops (influenced by Todis and their money, no doubt) and tortured regularly.

His family also alleged that he was murdered. There is no doubt about the fact that his death took place under mysterious circumstances, and the fact that the first Investigating Officer in the case, Mr. Arindam Manna, was found dead under similarly mysterious circumstances (see this) would seem to suggest that something sinister was indeed going on.

Following a petition by Rukbanur and Kishwar Jahan, the High Court at Calcutta, on October 16, 2007, asked the CBI to probe the matter.The High Court responded favourably to this petition, and interestingly, in its order, asked former Kolkata Police commissioner Prasun Mukherjee to explain his association with the Todis and whether it was former cricketer Snehashish Ganguly (elder brother of former India captain Sourav Ganguly) who had introduced him to the Todis.

The CBI charged Priyanka's father Ashok Todi, uncle Pradip, maternal uncle Anil Saraogi, three police officers — former deputy commissioner Ajoy Kumar, ACP Sukanti Chakraborty, sub-inspector Krishnendu Das — and Mohiuddin alias Pappu, who acted as a conduit between cops and the Todis, with abetment to suicide. It also recommended departmental proceedings against Prasun Mukherjee and administrative proceedings against former DC Gyanwant Singh for interfering in the marriage of two consenting adults.

The matter is currently sub-judice.

When I had started this story, I’d mentioned that a couple of businessmen had struck a few deals. So, what were these deals all about?

Media reports suggest that these deals involve both the brand KKR and the individual Shah Rukh Khan. The points to be noted are:

Shah Rukh Khan will act as the brand ambassador for the Lux Hosiery group, of which Ashok Todi is the promoter.
Lux will launch and Shah Rukh Khan will promote KKR co-branded T-shirts from the Lux stable.
Lux will be part of KKR’s off-field apparel merchandise.

On February 23, 2010, I read a report in the Times of India with the headline “SRK calls off deal with tainted Todi.” (Its there in the first page of the Bangalore edition, with a related news item in the 15th page.) The tone of the first part suggested that Shah Rukh Khan had taken note of the charges against the Todis and the appeal made to him by Rizwanur’s mother.

The man has finally done something heroic, I told myself as I read the first part of the report on page 15.

But the shocker was to follow soon - “Pradip Todi, co-accused in the [Rizwanur] case and director of Lux Hosiery, indicated that other associations between SRK and the brand owned by Todi would continue. “We are aware of the development. Keeping in mind the sensibility of the people of Kolkata and West Bengal we respect SRK’s decision. He has decided to put only the deal with Knight Riders on hold,” Pradip Todi said.”

So what exactly is happening? Has this man really decided to respect the sentiments of our Kolkata and act like a good human being, or is it a mere business ploy to make sure protesters dont disrupt his team’s IPL matches? Is he really serious about not doing business with the Todis, or is he just waiting for the IPL to get over till he launches the Lux co-branded KKR T-shirts?? In short, is this just another publicity stunt?

I, for one, have my doubts.

P.S. Isn’t it a bit weird that SRK is named Rizwan in his latest movie? And….come to think of it….would SRK himself have been alive today if Gauri’s parents were anything like the Todis?

What if.....?!?!??!! - (Blog-a-ton 7)

2010-02-06T20:04:00.003+05:30

This post has been published by me as a part of the Blog-a-Ton 7; the seventh edition of the online marathon of Bloggers; where we decide and we write. To be part of the next edition, visit and start following Blog-a-Ton.

Dear Reader,

Its my flight back to Kolkata. I feel like I’m in for a long haul. Nothing to do..…3 hours to kill. To make matters worse, There’s only 1 really hot PYT in the entire flight. And she’s seated about 20 rows away. Checking her out is just out of the question, I tell myself. Am about to doze off, when my neighbor's little kid (this neighbor of mine is about 10 years older than me, but looks 5 younger….vagaries of nature, I swear!!) takes a liking for me. First, he starts fiddling with my watch. Tugs at it like he wants to pull it out of my wrist. An instant later, I find him standing on my briefcase. Which, incidentally, is now on my lap. He starts pulling my ears. I’m forced out of my slumber and guess what, I see PYT. She’s walking past me….actually, she’s stopped – standing next to me now! And I get a really sweet smile!! Am nonplussed – a really hot girl smiling at me?!?!? What’s coming next??????? Right then, her eyes start speaking to me. “You two make a cute father – son duo.”

God’s playing his nasty little game with me again….Wonder what I did to rub him the wrong way. Any clue anyone??

On a more serious note, this incident set me wondering....what if the girl and I had actually had a decent conversation? Would it have led to anything? Or would it not? And what exactly is it that makes two people fall in love? Can there ever be a scientific or mathematical formula to determine if two people will ever fall in love with each other?

Love I guess is one of those glorious uncertainties that makes life so beautiful.....so worth living. Hope it stays that way.....out of the reach of rationalists, astrologers, (the ones who claim they can 'determine' compatibility) moral police and the like. Its just one life. Lie it. Love it. Every waking moment.

Swayambhu

P.S. Have you ever wondered about the way an air-hostess is needed to dress up aboard a flight? Why can they not be given a chance to look "normal"? Would it have caused us any inconvenience if they were given an option? And doesn't this reflect very poorly on the way we stereotype women and standards of feminine beauty? I do not know which airline started this practice, but I do know this - its an absolutely ridiculous, brainless decision on the part of all airlines to continue with it.

P.P.S. Pictures taken from ‘Land of Black Gold’ by Herge and ‘Asterix the Legionary’ by Goscinny and Uderzo.

The fellow Blog-a-Tonics who took part in this Blog-a-Ton and links to their respective posts can be checked here. To be part of the next edition, visit and start following Blog-a-Ton.

Of Paintings and Photographs - II

2010-02-01T12:00:00.001+05:30

_______________________________________________________

Of Paintings and Photographs

2010-01-21T18:27:00.001+05:30

5 beautiful paintings, photographed by me recently. Hope you like them!!

Life in Bangalore

2010-01-15T09:51:00.001+05:30

I’ve been in this city for about 2 weeks now….been experiencing the sights and sounds of the city….Here are a few samples for you.

Buddha at Shiro, UB City

UB Towers

Ulsoor Lake

Island in Ulsoor Lake

Cityscape - View from my Rooftop

A Squirrel on my Terrace

So then….not bad for just ten days, no??

P.S. Photos were taken by me with my Nokia Supernova. Hope you like them.

Happy New Year!!!

2010-01-11T10:57:00.001+05:30

I do not believe in new year resolutions….for that matter, I do not even believe that the beginning of a new calendar year calls for any special celebration of any sort whatsoever. (I still party though, but that’s because its that time of the year when you will have the time to party and hangout with friends. Its a holiday for almost everyone, and that’s the best part of New Year’s Celebrations, for me at least. :-)) This time, however, on the first day of 2010, I decided to set some targets for myself. For the coming year, and the coming decade.

A number of reasons contributed to this. Firstly, the last year and a half had been really difficult for me, and I’d finally been given a chance to start life afresh….from the fourth of January, in Bangalore. Secondly, I figured that I really did need to set targets for myself once again, in order to get back my sense of purpose, more than anything else. I penned a few lines for myself and you, reader, shall find them reproduced in the following paragraphs.

1. Rediscover myself, and my sense of purpose - There was a time when I really was living my life to the fullest, following my heart, doing what I believed in. And then, Disaster happened…….quickly followed by Calamity. And somewhere, I just lost myself. More than anything else, I really would want to lead my life on my own terms once again…..in the way I want to live it.

2. Get my books published – I have been working on 1 (named Forest Laws in India, with Debosmita) for the last 2 years now but, for a number of reasons, it hasn’t seen the light of day yet. A second book, on Environmental Laws, (with Arjya B. Majumdar) is almost ready too. My publisher is more than willing to go ahead with it – in fact, he’s been chasing me for the manuscript for some time now. Sheer laziness on my part has delayed its publication. (Note to reader : now you know why my blog is titled what it is.) Nowadays I keep telling myself that I have to, just have to, get it published before September this year.

3. Lose weight - Nowadays i find it difficult to convince even myself that “I'm not fat, just well covered.”(See tag post below.)

4. Fall in love – Would be nice, no?? This one’s more of a wish, really….I’ve been single for some time now. What’s worse, almost all my friends have found new girlfriends over the last couple of months, and it almost feels like a contagious disease now!!! Just that time of the year when almost everyone around you seems to lose his/her head. And heart. Together. As a rule. But this has had some not-so-nice consequences for me. For starters, I can’t find someone to go out for a drink with on weekends. :-(

And even as i write this, news reaches me that a friend has “finally” found his fortieth (!!!!) girlfriend. Knowing him, girl possibly doesn’t even know that he exists on this planet. At most, they’ve met twice, or had a chat once. Wonder why some guys would like to link themselves with unsuspecting girls and claim ‘affairs’ like an encounter specialist in Mumbai Police would possibly claim “kills.”

But I digress.

5. Travel - As much as I can, and explore myself too in the process. New destinations, new experiences. Its just one life, after all. Would really love to travel as much as I can, over the entire globe…not just over the next year, but throughout my life. Right now, I’m drawing up plans to travel to places in and around Bangalore, and my list includes:

Mysore
Hyderabad
Chennai
Interiors of Karnataka
Parts of Kerala
Goa

6. Learn more about photography and take it up seriously.

7. Last but not the least, learn as much as I can about ‘lawyering’ over the next year or so.

So that’s that….the long and the short of my ‘to-do’ list. Lets see how much I can actually achieve over the coming months. Wish me luck everyone!

P.S. My series on The ‘State’ of West Bengal will resume soon.

P.P.S. Happy New Year!!! May all of you have a great time!

'State' of West Bengal - II

2009-12-28T22:58:00.004+05:30

The picture above is that of a construction site - Merlin is building a residential housing complex here. Its in Lake Town, just in front of Banaphool Abasan. A couple of years back, some factories stood here. One belonged to Rollick Ice cream, another factory shed housed a printing press. After they closed down, land sharks moved in, and clearances for converting the land were granted by the local politicians and municipal bodies pretty quickly. (Some palms needed to be greased, of course!!) And to think that our Chief Minister cant find non-agricultural land for setting up industries in this state!

(Photo taken by me with my Nokia Supernova)

P.S. If anyone has any similar story to share, please feel free to do so in the comments section. Thanks.

'State' of West Bengal - I

2009-12-27T13:51:00.002+05:30

This was something I spotted a few days back in Jessore Road, Lake Town. The story is a familiar one: a factory has been shut down, the workmen have not been paid their dues, and now, attempts are being made to build multi-storeyed buildings in the factory premises. Unfortnately for them, the workmen, about 300 in number, have received no support from any quarters whatsoever - not even from that great champion of the masses, Ms. Mamata Bannerjee and her Trinamool Congress.

Lake Town today is littered with the carcasses of dead factories and most of them are being torn down to make way for a booming real estate industry (thats what CREDAI Bengal calls it) and this in turn has led to the growth of the land mafia and the promoter-land mafia - politician nexus. More on this in my next post.

(Photo taken by me with my Nokia Supernova)

Aal Izz Well ?!?!?!!!

2009-12-27T09:39:00.005+05:30

Wanted to catch the movie with that song in it. However, the trouble that I had in trying to get myself to catch that movie tells me that Aal izz definitely not Well ..... In fact, nothing seems to be well - about my efforts to catch the movie, or my life in general, right now. Had a huge fight with a close friend. And I can't figure out why, when you fight with close friends or family, they take you back to something you (or they) had done a year, or a decade, back. (This fight was no exception.) Must confess I was also guilty of doing this, though. And then, you have to deal with the guilt...of fighting, and saying things you really shouldn't have said, or meant, and of losing patience and your ability to deal with reality.

Also, there's the small matter of coping with some of the 'not-so-sensitive-and-flattering' stuff that you get to hear about yourself during a fight. Can leave one really depressed, I say. I for one, was left speechless.

And I wonder why it always happens to me....every time I want something badly, I come very very close to getting it. But then, just when the cup is about to touch my lip, it all goes up in smoke. Holy Smoke!!! Happened with the two jobs I really wanted. And a host of other things. Now this. Planned for two months, and then, 2 days before the movie, I have a really really 'Big Fight.' Looks like I need a Getafix to fix this one for me!!

Merry Christmas!!

2009-12-25T00:04:00.000+05:30

Accosted by a pimp on Camac Street. “College girls le lo….hostel girls le lo….” Wanted to punch him. Real hard. Couldn’t. We live in a civilized society after all.

Came to know that a friend of mine had been flicking money from another friend’s wallet when the two of them were sharing a flat. Somehow, the news didn’t shock me as much as it should have.

Spotted some NRIs flashing fancy gadgets and taking photos of poverty in Park Street. They were even letting their kids play with the 5-year-old ragpickers. Could make out from their faces that they felt they were being very egalitarian and magnanimous and what not. For some reason, I couldn’t figure out who to pity, or feel sorry for, though...Could someone please remind them that the guy whose birthday they were supposedly celebrating was also born under similar circumstances??

Discovered that Nahoum and Nizam have lost their former glory.

The best moment of the night came when I entered a small little shop in Lake Town to buy some mouth fresheners. (Was returning home after consuming vodka in generous amounts, and didn’t want to take any chances.) The kid manning the shop had just heard about India’s victory from the radio playing I the shop, and he stated smiling…even clapped a few times. Pure joy…..something I haven’t witnessed for a long time now. I smiled back at him….gently, ever conscious of my own self. He looked even happier. He knew he’d struck a chord….had communicated happiness and joy. Sometimes, just sometimes, a smile is all that it takes. And the next time India takes the cricket field, I’ll pray a bit more for the team. They really do need to win…..for kids like him, and countless others….without a semblance of what we often call a ‘life’…..and any hope of a better tomorrow.

Was glad Santa had a gift for so many of them too, this Christmas eve.

Merry Christmas.

Exploring oneself

2009-12-21T11:49:00.007+05:30

Dear Reader,

This is my first tag post, and its also my first post in along while. I took up this exercise after discovering that Debosmita had tagged me in her post and, needless to say, I thoroughly enjoyed the whole exercise. Hope you like reading it!!

I am: Swayambhu Mukherjee, (Sway to some, Swam to others) 23, male, single, corporate lawyer, Kolkata (will be moving to Bangalore soon)

I think: too much at times, and too little at other times…..rarely get the balance right.

I know: that it’s always worth standing up for what you believe in, and what you feel is right.

I want: a life that I can look back on, 40 years from now, with a peaceful mind and a content heart….. I need to know that I tried my best, gave it my best shot all the time.

I have: courage, and a strong sense of righteousness.

I wish: to be able to follow my heart someday, before its too late.

I hate: dishonesty, showing off & snobbish behaviour, disrespect for women, corruption, racism and politics (the last one should surprise some people, but its true…very true).

I miss: nothing much now, but I guess I will be missing a whole lot of things after I move to Bangalore.

I fear: losing my family and closest friends, and losing myself.

I feel: confused, when I try to figure out the right path for me (w.r.t. my personal life only)

I hear: the sweet sounds made by the river flowing gently by my native hamlet.

I smell: the aroma of good food and the fragrance of fresh paper, when I open a new book for the first time.

I crave: for happiness and joy all around me.

I search: for peace of mind.

I wonder: if I will be able to finish all my tasks before I die.

I regret: not learning from some mistakes, and repeating them.

I love: anything that challenges me and my abilities.

I ache: for love, warmth and affection.

I care: about my family, my closest friends and my people.

I always: manage to cause pandemonium and general mayhem wherever I go.

I am not: fat, just “well covered.”

I believe: in being there when my family and friends need me.

I dance: in my dreams only.

I sing: see answer above.

I cry: never (that’s a lie, but then, I am a guy…..)

I don’t always: find the courage to stand up for what I know is right, and that’s something I really would love to change about myself.

I fight: only with my closest friends.

I write: only when I really want to….not very regularly. Check the frequency of blog posts.

I win: In the end. Always.

I lose: Never, or so I would wish.

I never: put on a mask.

I confuse: everyone around me, when I want to!!

I listen: only to my parents and very close friends.

I can usually be found: busy doing nothing.

I am scared: of nothing (that’s just what I would want people to believe!!!).

I need: a sense of security, and a lot of love, warmth and affection.

I am happy about: my new job, and the fact that I am getting a chance to start life afresh, anew.

I am tagging Someshwar Roy and Ramanuj Mukherjee. Am hoping other people will take up this exercise too! Just one thing - no plagiarism please!

Solitude

2009-10-26T16:54:00.003+05:30

May, 2008

I didn't ask why

Only felt the words come
As I had sensed they would ... someday
And we went our way

When we felt we should
And I felt I had to

Though unsure.....

September, 2009

I didn't ask why

I only said no

When I felt I had to

Feelings......unsure

As always

Never a confident word

Or deed
We went our ways...

Interesting photographs

2009-10-13T19:53:00.009+05:30

In this post, I have uploaded some nice photographs I found on the net....will keep adding photos in future too. Hope you like my collection!!

Mount Hood

(http://traveler.nationalgeographic.com/drives/mount-hood.html)

Lava - Hawai

(http://traveler.nationalgeographic.com/drives/hawaii.html)

Tulips in Bloom

(http://traveler.nationalgeographic.com/drives/netherlands-flower.html)

Sandhill Cranes

Garden of the Gods City Park, Colorado Springs
(http://traveler.nationalgeographic.com/drives/colorado.html)

Cloud Formations

(http://www.flatrock.org.nz/news/indexz006.htm)

Clouds....

(http://www.flatrock.org.nz/news/assets/straight_across_large.jpg)

Aurora ...would love to witness it someday

(http://i.dailymail.co.uk/i/pix/2009/09_01/bowL0309_433x650.jpg)

Aurora Borealis

(http://www.flatrock.org.nz/news/assets/clouds_vs_aurora_large.jpg)

A Thirsty Bat

(http://i.dailymail.co.uk/i/pix/2009/09/16/article-1213851-0674C1BF000005DC-384_634x827.jpg)

This fruit's striking colouring is thought to be caused by a random genetic mutation at odds of more than a million to one. In such cases, the red side usually tastes sweeter than the green side – because it has absorbed more sunshine during its growth.

(http://i.telegraph.co.uk/telegraph/multimedia/archive/01488/apple-460_1488245c.jpg)

Sexual Harrassment in Workplace Allows Humans to Breed, or so Thinks a Russian Judge

2009-10-13T17:47:00.000+05:30

Here's a report I found published in the The Telegraph on July 29, 2008. All I can say is that the Judge must have been stark, raving mad. Or high on Vodka. Or both.

Sexual harassment okay as it ensures humans breed, Russian judge rules

A Russian advertising executive who sued her boss for sexual harassment lost her case after a judge ruled that employers were obliged to make passes at female staff to ensure the survival of the human race.

By Adrian Blomfield in Moscow

Published: 6:33PM BST 29 Jul 2008

The unnamed executive, a 22-year-old from St Petersburg, had been hoping to become only the third woman in Russia's history to bring a successful sexual harassment action against a male employer.

She alleged she had been locked out of her office after she refused to have intimate relations with her 47-year-old boss.

"He always demanded that female workers signalled to him with their eyes that they desperately wanted to be laid on the boardroom table as soon as he gave the word," she earlier told the court. "I didn't realise at first that he wasn't speaking metaphorically."

The judge said he threw out the case not through lack of evidence but because the employer had acted gallantly rather than criminally.

"If we had no sexual harassment we would have no children," the judge ruled.

Since Soviet times, sexual harassment in Russia has become an accepted part of life in the office, work place and university lecture room.

According to a recent survey, 100 per cent of female professionals said they had been subjected to sexual harassment by their bosses, 32 per cent said they had had intercourse with them at least once and another seven per cent claimed to have been raped.

Eighty per cent of those who participated in the survey said they did not believe it possible to win promotion without engaging in sexual relations with their male superiors.

Women also report that it is common to be browbeaten into sex during job interviews, while female students regularly complain that university professors trade high marks for sexual favours.

Only two women have won sexual harassment cases since the collapse of the Soviet Union, one in 1993 and the other in 1997.

Human rights activists say that Russian women remain second-class citizens and are subjected to some of the highest levels of domestic abuse in the world.

Understanding Originality in Copyright Law and Developing an Indian Standard for the Protection of Compilation of Facts *

2009-10-10T15:36:00.000+05:30

Abstract

The interpretation of the word ‘original’ in copyright statutes has been a contentious issue the world over, especially with respect to the issue of whether copyright protection should be granted to ‘compilation of facts’ or databases. This debate has been resolved in two different ways on the two sides of the Atlantic. In the U.K., copyright law has been used to protect ‘industrious creation’ in order to ensure that a man’s labour is not misappropriated. In the U.S., the courts have spoken about the need for a minimum amount of creativity, and this was exemplified by the Fest ruling.

In Canada, the Supreme Court has ruled that ‘skill and judgment’ are a prerequisite for a finding of originality, which in turn makes a work eligible for copyright protection. This position is different from the law as it stands in the U.K. and the U.S. In this note the author will study the law in these three countries with a view to understanding the jurisprudence behind them. Finally, the author will study the development of the Indian position on this issue, with an analysis of the dependence of Indian courts on Anglo-Saxon jurisprudence as well as the recent decision of the Supreme Court in the Eastern Book Company case, which changed the Indian position on this issue completely by framing a new standard for determining originality.

Introduction

“The word original does not in this connection mean that the work must be the expression of original or inventive thought. Copyright acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of literary work, with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work- that it should originate from the author.”

Peterson, J., interpreting the word ‘original’ in University of London Press v. University Tutorial Press, [1916] 2 Ch. 601.

The debate between ‘creativity’ and ‘sweat of the brow’ or ‘industrious creation’ schools, coupled with the newly articulated ‘skill and judgment’ test, centers round the question of whether creativity is a prerequisite for a finding of originality in copyright law. It is one that has originated primarily because of the fact that copyright statutes the world over have chosen not to define the word “original” even though it is a prerequisite for a work to be granted copyright protection.

The “sweat of the brow” doctrine, which holds the field in the U.K., suggests that labour or industry alone, even in the absence of a substantial amount of creativity, can be sufficient to bestow copyright upon the author. For example, the labour that is required to compile a database is sufficient to provide copyright protection to the author, as long as it has not been copied from some other pre-existing work. Even though the work involved in compiling such a database is automatic and mechanical in nature, not involving the use of the creative faculties of the author, this does not affect the copyrightability of the work in question.

The American school of thought, the creativity school, holds that there cannot be any copyright in the absence of any creativity. According to this line of thought, the test of originality demands that there be at least some amount of creativity involved in the production of the work. To be subject to copyright protection, the work in question must be minimally creative and not be copied. “More precisely, the creativity requirement subsumes the not –copied requirement.” ¹ Labour alone is not enough; the essence of creativity has to be present. This school believes that merely mechanical rearrangements of pre-existing material are not original even if they have not been copied. The views held by this school have been articulated in a number of cases, for example, Tele-Direct Publications Inc. v. American Business Information Inc.² and Feist Publications v. Rural Telephone. ³ In Tele-Direct, ⁴ for example, it was stated that “compilations of data are to be measured by standards of intellect and creativity….the word author conveys a sense of creativity and ingenuity.”

The Canadian school of thought, comprising proponents of the ‘skill and judgment’ test, seems to suggest that the exercise of skill and judgment by an author is what gives a work its originality and copyrightability, as opposed to labour alone. It also suggests that creativity alone is not what gives a work its originality.⁵

In essence, the debate between the ‘creativity’ and ‘sweat of the brow’ or ‘industrious creation’ schools is “a far deeper theoretical encounter between two different and incompatible versions of the very meaning and purpose of copyright law.”⁶The ‘sweat of the brow’ school believes that the purpose of copyright law is to protect the interests of the author and allow him to enjoy the fruits of his labour. On the other hand, the creativity school belongs to the public interest model of copyright law, for which the production and circulation of works in the name of public interest is the key concern. ⁷ The skill and judgment school, on the other hand, would say that “[W]hen an author must exercise skill and judgment to ground originality in a work, there is a safeguard against the author being overcompensated for his or her work. This helps ensure that there is room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others.”⁸

At the end of it all, one can say that the aim of copyright law is to resolve this conflict or tension. This was articulated first by Lord Mansfield in the case of Sayre v. Moor,⁹ when he wrote, “We must care to take guard against two extremes equally prejudicial; the one that men of ability who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour, and the other, that the world may not be deprived of any improvements, nor the progress of the arts be retarded. The challenge facing this court, and copyright law generally, is to find a fair and appropriate equilibrium that achieves both goals.” A similar view was articulated by Binnie, J., in Théberge v. Galerie d’Art du Petit Champlain Inc.,¹⁰ when he said, “The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated.”

Originality in Canadian Jurisprudence

Originality as a criterion for copyright seems to be omnipresent: in almost all copyright legislations, it is incorporated. For example, the Canadian Copyright Act, ¹¹ in Section 5, provides that copyright shall subsist in “every original literary, dramatic, musical and artistic work.” The word ‘original’ first encompassed the ‘sweat of the brow’ doctrine, which has been the traditional commonwealth position,¹² and then Canada adopted the ‘Feist’¹³ standard followed in the U.S., before finally reaching the ‘skill and judgment’ test in the C.C.H case.¹⁴

To start with an analysis of this journey, we can first look at the U & R Tax Services case.¹⁵ Decided in 1995, this case adopted the ‘sweat of the brow’ theory of copyright protection. It was held, “industriousness as opposed to creativity is enough to give a work sufficient originality to make it copyrightable.”¹⁶ However, this position changed within a couple of years, with the decision of the Federal Court of Appeal in the Tele-Direct case.¹⁷ This case adopted the creativity standard as part of the Canadian jurisprudence.¹⁸ One of the reasons given in support of this position was that if Canada did not adopt this standard, it would fail to meet its North American Free Trade Agreement obligations.¹⁹ This case essentially adopted the ‘Feist’ ruling ²⁰ and made it a part of Canadian copyright law. In fact, “the court expressly found assistance in the U.S. experience.”²¹

Tele-Direct was followed by C.C.H. in the Federal Court of Appeal.²² According to the Federal Court of Appeal in this case, the only pre-condition to copyright in “Anglo-Canadian Law” was that a work be “independently produced and not copied from another person.”²³ Skill, judgment, labour, knowledge and so forth were all possible indicators of originality but were not required for an independently produced work to receive protection.²⁴ This case was followed by the C.C.H case in the Canadian Supreme Court,²⁵ which gave shape to the Canadian law as it stands today. However, before going into the details of this case, the case of Theberge v. Galerie D’Art du Petit Champlain ²⁶ needs to be studied as it provides the backdrop to this case.

In Theberge, ²⁷ the majority of the court, for the first time in Canada, provided an articulation of the balance to be struck between the rights of the creators and the rights of users to works which were copyright protected.²⁸ More importantly, the Supreme Court shifted away from its previous author-centered approach to an idea that copyright involves a balance between two sets of interests, “public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.”²⁹The decision of the Canadian Supreme Court in C.C.H Canadian Ltd. v. Law Society of Upper Canada ³⁰ was, in essence, a sequel to the Theberge case in that it built upon the concept of copyright law as a balancing act between author’s rights and public interest. It should be noted here that this position was first articulated in the Theberge case, and later reiterated in the case of Desputeaux v. Chouette,³¹ before being given a concrete shape in the C.C.H. case.³²

The C.C.H Decision: Developing the ‘Skill and Judgment’ Standard

C.C.H Canadian Ltd. v. Law Society of Upper Canada³³ was the result of concerted efforts by Canadian law book publishers to crack down on what they thought to be copyright infringing activities arising from the ‘document delivery’ services of the Great Library of the Law Society of Upper Canada. The publishers argued that their products, which included edited reasons for judgments, head notes, case summaries and the like, were protected by copyright, and that the L.S.U.C had violated the provisions of S. 30.2 of the Canadian Copyright Act. The L.S.U.C. contended that copyright did not exist in many of the works of these publishers. It was in this context that the question of what can be termed ‘original’ under Canadian copyright law came up.

It was held that in Canada, the standard for originality could be best understood and interpreted by using a “skill and judgment” test. It was decided that in order to receive copyright protection, a work must, firstly, “be more than a mere copy of another work.”³⁴ Secondly, it must reflect “an exercise of skill and judgment.”³⁵ This involves the exercise of some kind of intellectual effort. While rejecting the creativity and the sweat of the brow standards, the court said that while the creativity standard is too heavily loaded in favour of public interest, the “sweat of the brow” standard favours the rights of the author over public interest. In fact, it was held that the “sweat of the brow approach… fails to allow copyright to protect the public’s interest in maximizing the production and dissemination of intellectual works.”³⁶ And, in elaborating upon the “skill and judgment” standard, McLahlin, C.J., stated that “the exercise of skill and judgment… must not be so trivial that it could be characterized as a purely mechanical exercise.”³⁷Thus, the C.C.H. case provides a new standard for originality, one that requires an independent production of work involving skill and labour. However, the most important implication of the ruling flows not from the standard that it has framed but from the fact that it has identified public interest as a relevant criterion in formulating the standard that is to be applied in determining copyrightability. In fact, it is the first case that has been decided with public interest, and not author’s rights, in mind.³⁸

Sweat of the Brow: The Traditional Commonwealth Position

Moving on from the jurisprudence of C.C.H., one comes across the traditional Commonwealth jurisprudence that once held the field in Canada. The ‘sweat of the brow’ doctrine is generally regarded as the traditional Commonwealth approach to determine originality in authorship for the purposes of copyright law, ³⁹ and this is not without reason. The ‘sweat of the brow’ doctrine has been operative in England for more than two hundred years now, and this situation does not look like changing. In fact, this rule was affirmed in the U.K. on the same date that the ‘Feist’ case ⁴⁰ was taken up for hearing by the U.S. Supreme Court, in Waterlow Directories Ltd. v. Reed Information Services Ltd.⁴¹

One of the earliest cases on this doctrine and its applicability in public source databases arose in the year 1776, in the case of Taylor v. Bayne.⁴² This had piracy of the plaintiff’s road book as its subject matter. This contention was upheld, and an interdict was granted. In Sayre & ors. v. Moor, ⁴³ the defendant had copied and made alterations to the plaintiff’s sea charts. The defendant’s charts were of a better quality than the plaintiff’s. In this case, the court refused to grant an injunction. Reflecting on the aim of copyright law, Lord Mansfield wrote, “We must care to take guard against two extremes equally prejudicial; the one that men of ability who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour, and the other, that the world may not be deprived of any improvements, nor the progress of the arts be retarded. The challenge facing this court, and copyright law generally, is to find a fair and appropriate equilibrium that achieves both goals.” ⁴⁴

In Kelly v. Morris,⁴⁵the defendant had copied some portions from the plaintiff’s directory. An injunction was granted against those parts that were copied. In this case too, it was recognised that the plaintiff had a copyright in the facts that he had published. Again, in Morris v. Ashbee,⁴⁶ the subject matter of the dispute was a business directory, from which the plaintiff had copied some information. An injunction was granted in this case as well. Similarly, in Morris v. Wright,⁴⁷ the defendant had used the plaintiff’s directory for the purposes of verification. A preliminary injunction was first granted, and then this was maintained.

In Weatherby and Sons v. International Horse Agency and Exchange Ltd.⁴⁸it was held that the plaintiff was entitled to succeed in an action to restrain the defendant from infringing his copyright in his stud book with its list of brood mares. Significantly, it was held that an action would lie even though no damage was shown. In Independent Television Publications Ltd. v. Time Out Ltd. & Elliott,⁴⁹ the dispute was with respect to a television programming where a licensing scheme was available. It was held that an injunction could be granted in this case for a copyright infringement. Importantly, this was a case about a sole source database.

The debate about whether mere industriousness should be enough to give a work sufficient originality to make it copyrightable stems from the fact that copyright acts generally remain silent on this point. As a result, various countries across the globe have adopted various positions on this point. In the U.K., the legislature enacted the Copyright, Designs and Patents Act in 1988, and this is currently in force. Yet, despite being enacted in the 1980s, by which time the creativity versus sweat of the brow debate had acquired serious proportions, this act chose to stay silent on this issue. However, even after the coming into force of this act, the ‘Sweat of the Brow’ doctrine has been reaffirmed in the U.K. This happened in the case of Waterlow Directories Ltd. v. Reed Information Services Ltd.⁵⁰ In this case, the defendant entered names from the plaintiff’s directory into a word processor and sent letters to them to invite them to be included in the defendant’s directory. The court applied the principle that a compiler cannot copy facts appearing in a prior copyrighted directory to create another directory. It was held that a publisher may use or refer to a prior copyrighted work only “for the purpose of directing him where to call” in order to rediscover the facts appearing in the work. An injunction was granted against the defendant. However, this distinction between lawfully looking at facts in a directory and unlawfully writing them down without rediscovering them appears theoretically troublesome and somewhat trifling on the practical level.⁵¹ This was recognized by the court in the Waterlow case when it said that this issue may need further consideration, especially when “the person takes names and addresses and reproduces them on envelopes or letters” rather than on to a computer.⁵²

It is noteworthy that even though British law has only followed the “Sweat of the Brow” doctrine, the creativity theory also originated in a British court, in the year 1900. This happened in the case of Walter v. Lane,⁵³ where the issue was whether the report of a speech could be given copyright protection and whether the reporter could be considered to be the author for the purposes of copyright law. Lord Robertson’s dissenting judgment in this case is often considered to be the paradigmatic “creativity” judgment. ⁵⁴ According to Lord Robertson, it was difficult to see “how, in the widest sense of the term author, we are in the region of authorship.”⁵⁵ Lord Robertson’s understanding is based on an affirmation of the specificity of the labour of authorship, and, therefore, on a distinction between mental products per se and the specific works of authorship.⁵⁶ Thus, for him, there has to be an effort of the mind, even if it is very pedestrian.

The majority judgment in this case went along with the “sweat of the brow” doctrine. This was delivered by Lord Halsbury, and his pronouncement is often considered to be the paradigmatic “sweat of the brow” judgment.⁵⁷For Lord Halsbury, what is at stake is not “authorship” in any special sense, but rather the “grievous injustice” involved in the misappropriation of another’s effort. Thus, Lord Halsbury’s expansive conception of the word “author” is a part and parcel of a view of copyright as a remedy for misappropriation of one’s labour. ⁵⁸ For Lord Halsbury, no skill of any kind is a prerequisite for any finding of copyrightability. “If I have not insisted upon the skill and accuracy of those who produce in writing or print spoken words, it is not because I think less of those qualities, but because, as I have endeavoured to point out, neither the one nor the other are conditions precedent to the right created by statute.”⁵⁹ This judgment captures the essence of the “sweat of the brow” school of thought as it exists in the U.K.

The Law in the U.S.

In the U.S., too, the application of copyright law in cases involving compilation of facts was initially similar to the law as it existed in the U.K. ⁶⁰ This was brought about by a reliance on English cases such as Kelly v. Morris, ⁶¹ Morris v. Ashbee ⁶² and Morris v. Wright. ⁶³ Proof of this can be found in American decisions such as Leon v. Pacific Tel. & Tel. Co., ⁶⁴ Jewelers Circular Publishing Co. v. Keystone Publishing Co. ⁶⁵or Sampson & Murdock Co. v. Seaver-Radford Co. ⁶⁶

However, it was suggested by a number of critics that the “sweat of the brow” theory went against the constitutional scheme of things in the U.S., because the U.S. Constitution only empowered the Congress to enact laws to protect the writings of authors.⁶⁷ Nimmer, for example, was of the view that facts could not originate with the author, irrespective of the labour involved in collecting or compiling those facts. For him, this meant that they could not be given copyright protection. What could be protected was the manner in which they could be expressed under copyright law. ⁶⁸ This view was upheld in a number of cases, for example, Rosemont Enterprises, Inc. v. Random House,⁶⁹ Miller v. Universal City Studios, Inc.,⁷⁰Hoehling v. Universal City Studios, Inc.,⁷¹ Gardner v. Nizer,⁷² and Greenbie v. Noble.⁷³ Moreover, “placing published facts off limits conflicted with the policy of encouraging subsequent authors to build upon the efforts of their predecessors by using previously published facts in the creation of new and useful works.”⁷⁴ This contentious issue finally came up for a decision before the Supreme Court in Feist Publications Inc. v. Rural Telephone Service Co.⁷⁵ This case has been discussed in detail in the following paragraphs.

Feist in the American Supreme Court⁷⁶

Feist was a publishing company that specialized in the publication of an area-wide telephone directory. For North West Kansas, out of eleven telephone companies, only Rural had denied Feist the permission to use its listings by refusing to grant it a license. The refusal was motivated by a desire to extend its monopoly in providing telephone services to a monopoly in yellow-pages advertising.

“Unable to license Rural's white pages listings, Feist used them without Rural's consent. Feist began by removing several thousand listings that fell outside the geographic range of its area-wide directory, then hired personnel to investigate the 4,935 that remained. These employees verified the data reported by Rural and sought to obtain additional information. As a result, a typical Feist listing includes the individual's street address; most of Rural's listings do not. Notwithstanding these additions, however, 1,309 of the 46,878 listings in Feist's 1983 directory were identical to listings in Rural's 1982-1983 white pages. Four of these were fictitious listings that Rural had inserted into its directory to detect copying.”⁷⁷

Rural sued Feist for copyright infringement, stating that Feist could not use the information contained in its directory, and that Feist personnel were under a legal obligation to travel door-to-door or conduct a telephone survey in order to rediscover the information for themselves. This argument was based on the “Sweat of the Brow” doctrine. It was rejected by a unanimous decision of the U.S. Supreme Court. The Court in Feist ⁷⁸ held that only the elements of original selection and arrangement used in a directory or other compilation are eligible for copyright protection and that subsequent compilers may freely take the underlying facts in copyrighted compilations for use in their own publications. This essentially means that there can be no copyright over facts and data that are contained in databases. What can be protected are the selection, arrangement and compilation of data. In the ratio of the judgment, it was expressly mentioned that facts in themselves are not copyrightable because of the fact that they are not original to the author. To qualify for copyright protection, a work must be original to the author. “Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice.”⁷⁹

The divergence with the British ‘sweat of the brow’ position starts here. While the Commonwealth position seeks to protect the labour of the author, by ensuring, among other things, that a person will have to discover facts anew before publishing them in his database (this was relied upon by counsel for Rural in their arguments) the American Constitution allows for the framing of a law only to protect original works.⁸⁰ Since facts cannot be called original, it was held that facts could not be given protection by the Copyright Act as that would be unconstitutional. As a result, the creativity test was framed by the Feist court, in keeping with the Constitutional mandate. And, as the judgment itself mentions, factual compilations may be protected as they may possess the required originality, as opposed to facts themselves. The choices as to selection and arrangement, so long as they are made independently and entail minimum amount of creativity, are sufficiently original for the Congress to protect them with enactments. However, this protection is also subject to the limitation that copyright protection extends only to those works which are original to the author, and not the work as a whole. The facts themselves do not become original through association. This decision is important for another reason. It seeks to preclude the creation of a monopoly in facts lying in the public domain, thereby placing public interest ahead of proprietary interests in the creation of such a monopoly.

Development of Indian Jurisprudence on Originality and the Protection of Compilation of Facts

Now we come to the position in India. In India, database rights and copyright in databases is an emerging field, and not too many cases have been decided on this or other related subjects. The ones that had been decided earlier indicated that the law in India should be similar to that followed in the United Kingdom. Historically, the two countries have shared similar copyright laws and many cases seem to indicate that the jurisprudence in both countries is roughly identical, with an emphasis on protecting a man’s labour. For example, S. 3A protects databases in the U.K. by classifying it as a literary work. This section reads “a collection of works, data or other materials which are arranged in a systematic or methodical way, and are individually accessible by electronic or other means.”⁸¹ In India, too, databases have been treated as literary work. S. 2(o) of the of the Copyright Act reads, “literary work includes computer programs, tables and compilations including computer databases.” ⁸²

Reliance on English Jurisprudence

The similarity in approach could be seen in a number of decisions too. For example, in the case of Macmillan and Co. v. K.J. Cooper, ⁸³ it was held that for a work to be entitled to copyright protection, “independent labour must be apparent” and that “it is necessary that labour, skill and capital should be expended sufficiently to impart to the product some quality or character which the raw material does not possess and which differentiate the product from the raw material.” ⁸⁴ This view, which formed a part of the common Anglo-Indian jurisprudence of its time, was later accepted in a number of cases such as Camlin Pvt. Ltd. v. M/s National Pencil Industries, ⁸⁵ Mishra Bandhu Karyalaya v. S. Koshal, ⁸⁶ S.K. Dutt v. Law Book Co., ⁸⁷ V. Errabhadra Rao v. B.N. Sharma, ⁸⁸andC. Cunniah & Co. v. Balraj & Co.⁸⁹

In Camlin Pvt. Ltd. v. M/s National Pencil Industries, ⁹⁰ it was held that “in order to be covered by the Copyright Law, any work in which copyright is claimed must originate from the author who must have expended his skill and labour and the work must be something which has not been copied by the author from anyone else. It is only then that it can be said to have been originated from the author.”⁹¹

In coming to this conclusion, this case relied upon two English cases: Leslie v. J. Young and Sons, ⁹² and Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. ⁹³In both of them, there was an emphasis upon the labour expended in the creation of the work sought to be protected. This approach had been adopted by the Indian Courts too. More than anything else, the Indian approach seemed to be to try and ensure that the fruits of a man’s labour are not appropriated by someone else. As a result, the law as it then stood would protect facts in a compilation simply because of the labour that had been expended in collecting it. If someone else wanted to use those facts, he had to discover them anew. He could only look at a previously existing database to find out where to call in order to gather that data afresh

This is different from the American approach. In the U.S., it has been decided that facts cannot be protected; facts could not originate with the author, irrespective of the labour involved in collecting or compiling those facts. This was in keeping with the Constitutional mandate in that country to protect the original writings of authors.⁹⁴

Indian jurisprudence on this point was also different from Canadian law as stated by the Canadian Supreme Court in C.C.H.⁹⁵The Canadian position focuses more on the skill and judgment used in the creation of a work of authorship and less on the labour used in creating it while determining whether a work is eligible to receive copyright protection. This position also seeks to strike a balance between “public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.”⁹⁶In fact, in the C.C.H. case, the “Sweat of the Brow” test was rejected for this reason alone. Speaking on the “sweat of the brow” test, McLahlin, C.J., stated, “Sweat of the brow standard fails to allow copyright to protect the public’s interest in maximizing the production and dissemination of intellectual works.”⁹⁷

As opposed to the promotion of public interest by encouraging the dissemination and creation of intellectual works, the “Sweat of the Brow” standard seeks to ensure that the fruits of a man’s labour are not appropriated by someone else. This is what sets it apart from the Canadian, and, to an extent, the American position as well. The law as it stood in India was more of a private law than a public one, and was roughly similar to the position in the U.K. The presumption we can draw from this is that Indian jurisprudence had been relying too heavily on the English understanding of what laws should be like, and this had an adverse effect on the development of Indian jurisprudence in this field.

This was brilliantly articulated by Mr. Rajeev Dhawan in an article ⁹⁸ where he propounded the concept of the “Black Letter Law Tradition.” He suggested that the modern legal system in India developed under the aegis of British rule and, as a result, could not shake off the colonial influences that led to its creation. This has been the case even after independence, and, as in all other fields, copyright law has also been shaped by English jurisprudence. “Mature versions of Black Letter Law Tradition were kept alive by contacts with English jurisprudence and English legal education………Mainstream scholarship in Indian law continues to espouse the narrow Black Letter Law Tradition. It is concerned with a knowledge of statute and case law.” ⁹⁹ The emphasis, as has been rightly pointed out, is on knowledge of statute and case law, rather that a thorough understanding and development of the same. As a result, the Indian law in most fields only served to reflect the English position, and the concept of sweat of the brow in protecting compilations of facts is no exception.

The Eastern Book Company Case: A Radical Shift in the Indian Position

The Indian position underwent a radical change with the Supreme Court’s ruling in Eastern Book Company v. D.B. Modak,¹⁰⁰ wherein it was opined that in matters relating to the compilation of certain facts, the standards that are required are a minimum level of creativity and the exercise of skill and judgment. This pronouncement means that the Court has now adopted a combination of the U.S. and Canadian positions as the Indian position on this issue. The Court stated, “No doubt the appellants have collected the material and improved the readability of the judgment by putting inputs in the original text of the judgment by considerable labour and arranged it in their own style, but that does not give the flavour of minimum, requirement of creativity. The exercise of the Skill and judgment required to produce the work is trivial and is on account of the labour and the capital invested and could be characterized as purely a work which has been brought about by putting some amount of labour by the appellants. Although for establishing a copyright, the creativity standard that applies is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. It does require a minimal degree of creativity.”

Conclusion

It has to be said that this judgment is a step in the right direction, and is in accordance with the spirit of copyright law, which seeks to protect that which is the creation of a man’s intellect, not that which is the fruit of his labours. Works that have necessitated the expenditure of time, labour and money alone cannot be classified as original literary works. Moreover, facts do not originate with the author, and therefore, protecting facts through copyright law goes against the concept of copyright as an intellectual property right. Such protection would also be in violation of the letter and spirit of the Berne Convention for the Protection of Literary and Artistic Works, 1886.

In the long run, a separate statute needs to be enacted for compilations of facts, and this should have a separate yardstick for determining originality, which is different from that given to literary works as per existing copyright statutes. This should keep in mind the fact that databases are different in nature from other literary works in that there is very little scope for originality in them, because facts cannot originate with an author, but compiling them needs labour, money and skill. Moreover, such a law should also keep in mind the fact that some protection should be given to compilations of facts, so as to serve as an incentive for the publishing industry, but that this protection should not be too stringent or excessive, because that would deter the creation of a strong public domain of facts.

________________________________

1. Drassinower, A., Sweat of the Brow, Creativity, and Authorship: On Originality in Canadian Copyright Law, (2003-04) 1 U.O.L.T.J. 105, at page 108, available online at www.uoltj.ca/articles/vol1.1-2/2003-2004.1.1-2.uoltj.Drassinower.105-123.pdf, last visited on 18^thMarch, 2008.

2. [1998] 2 F.C. 22,

3. 499 U.S. 340 (1991) 1282

4. [1998] 2 F.C. 22

5. C.C.H Canadian Ltd. v. Law Society of Upper Canada, [2004] S.C.C. 13

6. Drassinower, A., Sweat of the Brow, Creativity, and Authorship: On Originality in Canadian Copyright Law, (2003-04) 1 U.O.L.T.J. 105, at page 108-109, available online at www.uoltj.ca/articles/vol1.1-2/2003-2004.1.1-2.uoltj.Drassinower.105-123.pdf, last visited on 18^thMarch, 2008.

7. Mazeh, Y., Canadian Originality and the Tension Between the Commonwealth and the American Standards for Copyright Protection: The Myth of Tele-Direct, (2003) 16 I.P.J. 561, as given in Drassinower, A., Sweat of the Brow, Creativity, and Authorship: On Originality in Canadian Copyright Law, (2003-04) 1 U.O.L.T.J. 105, at page 107, available online at www.uoltj.ca/articles/vol1.1-2/2003-2004.1.1-2.uoltj.Drassinower.105-123.pdf, last visited on 18^thMarch, 2008.

8. C.C.H Canadian Ltd. v. Law Society of Upper Canada, [2004] S.C.C. 13, at paragraph 23

9. (1785) 102 E.R. 139, at p. 140

10. 2002 S.C.C 34

11. R.S.C. 1985, c. C-42, available online at http://laws.justice.gc.ca/en/c-42/ last visited on 18^thMarch, 2008.

12. Drassinower, A., Sweat of the Brow, Creativity, and Authorship: On Originality in Canadian Copyright Law, (2003-04) 1 U.O.L.T.J. 105, at page 109, available online at www.uoltj.ca/articles/vol1.1-2/2003-2004.1.1-2.uoltj.Drassinower.105-123.pdf, last visited on 18^thMarch, 2008.

13. Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) 1282

14. C.C.H Canadian Ltd. v. Law Society of Upper Canada [2004] S.C.C. 13

15. U&R Tax Services Ltd. v. H & R Block Canada Inc., 62 C.P.R. (3d) 257.

16. ibid. at p. 264

17. Tele Direct (Publications) Inc. v. American Business Information Inc. [1998] 2 F.C. 22; 76 C.P.R. (3d) 296

18. ibid., at pp. 303, 308

19. Craig, C.J., The Evolution of Originality in Canadian Copyright Law: Authorship, Reward and the Public Interest, (2005) 2:2 U.O.L.T.J. 425, available online at www.uoltj.ca/articles/vol2.2/2005.2.2.uoltj.Craig.425-445.pdf, last visited on 18^thMarch, 2008.

20. Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) 1282

21. Craig, C.J., The Evolution of Originality in Canadian Copyright Law: Authorship, Reward and the Public Interest, (2005) 2:2 U.O.L.T.J. 425, at p. 428, available online at www.uoltj.ca/articles/vol2.2/2005.2.2.uoltj.Craig.425-445.pdf, last visited on 18^thMarch, 2008.

22. [2002] 2 F.C. 451

23. ibid. at paragraph 36.

24. ibid., at paragraph 53.

25. [2004] S.C.C. 13

26. Theberge v. Galerie D’Art du Petit Champlain [2002] S.C.R. 336

27. ibid.

28. ibid.

29. ibid., at paragraph 30-31.

30. [2004] S.C.C. 13

31. Desputeaux v. Chouette [2003] S.C.C. 17

32. C.C.H Canadian Ltd. v. Law Society of Upper Canada, [2004] S.C.C. 13

33. ibid.

34. ibid.

35. ibid., at paragraph 24

36. ibid., at paragraph. 24

37. ibid., at paragraph 25

38. Craig, C.J., The Evolution of Originality in Canadian Copyright Law: Authorship, Reward and the Public Interest, (2005) 2:2 U.O.L.T.J. 425, at p. 439, available online at www.uoltj.ca/articles/vol2.2/2005.2.2.uoltj.Craig.425-445.pdf, last visited on 18^thMarch, 2008.

39. Drassinower, A., Sweat of the Brow, Creativity, and Authorship: On Originality in Canadian Copyright Law, (2003-04) 1 U.O.L.T.J. 105, at page 109, available online at www.uoltj.ca/articles/vol1.1-2/2003-2004.1.1-2.uoltj.Drassinower.105-123.pdf, last visited on 18^thMarch, 2008.

40. Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) 1282

41. Waterlow Directories Ltd. v. Reed Information Services Ltd. (1990) 20 I.P.R. 69; [1992] F.S.R. 409 (Ch. 1990)

42. Taylor v. Bayne, (1776) 10 Mor. Dict. 8308 (Scot.)

43. Sayre & Ors. v. Moor, (1785) 102 E.R. 139

44. ibid., at p. 140

45. Kelly v. Morris, (1866) L.R. 1 Eq. 697.

46. Morris v. Ashbee, (1866) L.R. 7 Eq. 34

47. Morris v. Wright, (1870) L.R. 5 Ch. App. 279

48. Weatherby and Sons v. International Horse Agency and Exchange Ltd. [1910] 2 Ch. 297

49. Independent Television Publications Ltd. v. Time Out Ltd. & Elliott,[1984] F.S.R. 64 (C.A. 1983)

50. Waterlow Directories Ltd. v. Reed Information Services Ltd., (1990) 20 I.P.R. 69; [1992] F.S.R. 409 (Ch. 1990)

51. Arden, Thomas P., The Conflicting Treatments of Compilations of Facts under the United States and British Copyright Laws, A.I.P.L.A.Q.J. Vol. 19: 267 No. 4 1991, available online at www.mbc.com/db30/cgi-bin/pubs/TPA-Conflicting_Treatments.pdf, last visited on 18^thMarch, 2008.

52. Waterlow Directories Ltd. v. Reed Information Services Ltd., (1990) 20 I.P.R. 69; [1992] F.S.R. 409 (Ch. 1990)

53. Walter v. Lane,[1900] A.C. 539

54. Drassinower, A., Sweat of the Brow, Creativity, and Authorship: On Originality in Canadian Copyright Law, (2003-04) 1 U.O.L.T.J. 105, at page 113, available online at www.uoltj.ca/articles/vol1.1-2/2003-2004.1.1-2.uoltj.Drassinower.105-123.pdf, last visited on 18^thMarch, 2008.

55. Walter v. Lane, [1900] A.C. 539, at p. 561

56. Drassinower, A., Sweat of the Brow, Creativity, and Authorship: On Originality in Canadian Copyright Law, (2003-04) 1 U.O.L.T.J. 105, at pages 114-116, available online at www.uoltj.ca/articles/vol1.1-2/2003-2004.1.1-2.uoltj.Drassinower.105-123.pdf, last visited on 18^thMarch, 2008.

57. ibid., at p. 113

58. ibid.

59. Walter v. Lane, [1900] A.C. 539, at p. 549.

60. Arden, Thomas P., The Conflicting Treatments of Compilations of Facts under the United States and British Copyright Laws, A.I.P.L.A.Q.J. Vol. 19: 267 No. 4 1991, available online at www.mbc.com/db30/cgi-bin/pubs/TPA-Conflicting_Treatments.pdf, last visited on 18^thMarch, 2008.

61. Kelly v. Morris, (1866) L.R. 1 Eq. 697.

62. Morris v. Ashbee, (1866) L.R. 7 Eq. 34

63. Morris v. Wright, (1870) L.R. 5 Ch. App. 279

64. Leon v. Pacific Tel. & Tel. Co., 91 F.2d 484, (9th Cir. 1937)

65. Jewelers Circular Publishing Co. v. Keystone Publishing Co., 281 F. 83, 88-90 (2d Cir. 1922)

66. Sampson & Murdock Co. v. Seaver-Radford Co., 140 F. 539, (1st Cir. 1905)

67. U.S. Constitution. Art. I, §8, cl. 8.

68. Nimmer on Copyright §2.03[E], pp. 2-34.1—2-34.2 (1988)

69. Rosemont Enterprises, Inc. v. Random House, Inc. 366 F.2d 303, 310 (2d Cir. 1966), cert. denied, 385 U.S. 1009 (1967).

70. Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1370-72 (5th Cir. 1981)

71. Hoehling v. Universal City Studios, Inc. 618 F.2d 972, 974, 979-80 (2d Cir.), cert. denied, 449 U.S. 841 (1980)

72. Gardner v. Nizer,391 F. Supp. 940, 943-44 (S.D.N.Y. 1975)

73. Greenbie v. Noble, 151 F. Supp. 45, 67-68 (S.D.N.Y. 1957)

74. Rosemont Enterprises, Inc. v. Random House, Inc. 366 F.2d 303, 310 (2d Cir. 1966), cert. denied, 385 U.S. 1009 (1967)., as given in Arden, Thomas P., The Conflicting Treatments of Compilations of Facts under the United States and British Copyright Laws, A.I.P.L.A.Q.J. Vol. 19: 267 No. 4 1991, available online at www.mbc.com/db30/cgi-bin/pubs/TPA-Conflicting_Treatments.pdf, last visited on 18^thMarch, 2008.

75. Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) 1282

76. ibid.

77. ibid., at para. 6, per O’ Connor, J.

78. Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) 1282

79. ibid., at para 10, per O’ Connor, J.

80. ibid., at para 11, per O’ Connor, J.

81. The Copyright, Designs and Patents Act, 1988.

82. The Indian Copyright Act, 1957.

83. Macmillan and Co. v. K.J. Cooper, A.I.R. 1924 P.C. 75

84. ibid.

85. Camlin Pvt. Ltd. v. M/s National Pencil Industries, A.I.R. 1986 Del. 444

86. Mishra Bandhu Karyalaya v. S. Koshal, A.I.R. 1970 M.P. 261

87. S.K. Dutt v. Law Book Co., A.I.R. 1954 All. 570

88. V. Errabhadra Rao v. B.N. Sharma, A.I.R. 1960 A.P. 415

89. C. Cunniah & Co. v. Balraj & Co., A.I.R. 1961 Mad. 111

90. Camlin Pvt. Ltd. v. M/s National Pencil Industries, A.I.R. 1986 Del. 444

91. ibid., at p.448

92. Leslie v. J. Young and Sons, [1894] A.C. 335

93. Ladbroke (Football) Ltd. v. William Hill (Football) Ltd., (1964) 1 All E.R. 465

94. U.S. Constitution. Art. I, §8, cl. 8.

95. C.C.H Canadian Ltd. v. Law Society of Upper Canada [2004] S.C.C. 13

96. Theberge v. Galerie D’Art du Petit Champlain [2002] S.C.R. 336, at para. 30-31

97. C.C.H Canadian Ltd. v. Law Society of Upper Canada, [2004] S.C.C. 13

98. Dhavan, R., Introduction, at p. xiii, Galanter, M., Law and Society in Modern India, Oxford University Press, London, 1^stedn., 1993.

99. ibid., at p. xx-xxi

100. (2008)1 S.C.C. 1

* This article was published in the 2008 edition of The Journal of World Intellectual Property Rights.

2009-10-08T11:31:00.000+05:30

The statement of the Union defence minister, Pranab Mukherjee, that the Brigade Parade Ground is meant for rallies, does not augur well for the health of the city (Brigade is for rallies: Pranab, Dec 27). All the efforts to restore the Maidan to its former glory will come to naught if the Brigade Parade Grounds are thrown open to rallies. And it is quite likely that it will be, now that the defence minister has found a willing ally in the West Bengal chief minister, Buddhadeb Bhattacharjee. Once a precedent is set, it is only a matter of time before every other political party starts organizing meetings at the Brigade. When it comes to acting irresponsibly and flouting court orders, Indian politicians remain unparalleled.

Swayambhu Mukherjee, Calcutta

(This letter was published in The Telegraph on December 29, 2005)

Bitter Harvest *

2009-10-08T11:25:00.000+05:30

The bombings in London have proved once again that no place is safe from extremist violence. But the British have only themselves and their foreign policy to blame for this state of affairs. They are the ones who supplied Osama bin Laden and his then fledgling group with arms in the late Seventies and early Eighties. Bin Laden's al Qaida is not just a terrorist outfit anymore. It is a global phenomenon, the likes of which this world has not seen before. It has provided an opportunity to disgruntled Muslim youth all over the world to vent their spleen. Prime Minister Tony Blair and his cabinet should reflect on the plight of the innocent victims of the US-sponsored war in Iraq, Afghanistan and countless other nations. Their numbers certainly exceed the number of those affected by Thursday's blasts.

Also the world media, including the Indian press, has a habit of giving a lot of attention to disasters taking place in the first world. Similar situations in third world countries are ignored. One only needs to take a look at the humanitarian disasters in Darfur and other parts of Africa for proof. The latter got lesser attention than they deserved, even though conditions there were far worse than that in London.

(This photograph showing a starving Sudanese child being stalked by a vulture won Kevin Carter the 1994 Pulitzer Prize for feature photography.)

Swayambhu Mukherjee, Calcutta

* This opinion was published in The Telegraph on July 12, 2005, in the aftermath of the London train bombings.

Westward Ho!!!!

2009-10-05T20:26:00.000+05:30

In an earlier post, I had reproduced a judgment delivered by the Indian Supreme Court in 1980. Now, I think its time for me to pay some attention to a European nation, Italy. People who know me well will tell you, visitor, that its another country whose laws and legal systems are familiar territory for me. They might also tell you that I have done a fair bit of work in collaboration with a leading Italian law firm. But I digress....

"Sexually abusing a teenager is less serious a crime if the girl is not a virgin," Italy’s highest court once said, ruling in favour of a man in his forties, referred to only as Marco T., who forced his 14-year old stepdaughter to have oral sex with him after she refused intercourse.

The man, who was initially sentenced to three years and four months in jail, had lodged an appeal arguing that the fact that his stepdaughter had had sex with men before should have been taken into consideration during his trial. It was, according to him, a mitigating factor.

The Supreme Court agreed, saying that because of her previous sexual experiences, the victim’s “personality, from a sexual point of view, is much more developed than what would be normally expected of a girl of her age.”

“It is therefore fair to argue that (the damage for the victim) would be lower” if the abused girl was not a virgin, Italian news agencies quoted the court as saying.

(For more details, please refer to : http://news.bbc.co.uk/2/hi/europe/4726002.stm)

In another case, it ruled that “an isolated and impulsive” pat on a woman’s buttocks at work did not constitute sexual harassment. And the icing on the cake??? A woman in jeans can't be raped because, well, she was wearing skin-tight jeans!!!!!!

(For more details, please refer to : http://news.bbc.co.uk/2/hi/europe/277881.stm)

On a brighter note, the country has since tried to strengthen its rape laws, and the new law sets a mandatory life sentence for the rape of minors (as in the case discussed above), or in case of attacks where the victims are killed.

(For more details, please refer to: http://news.bbc.co.uk/2/hi/europe/7902107.stm

Map of Italy taken from http://www.lonelyplanet.com/maps/europe/italy/)

Books and more....

2009-10-05T13:47:00.000+05:30

Well, here's a list of some of the books I plan (and hope) to read soon. If you can think of some interesting book that's coming out (or has been released) recently, let me know.

1. Nine Lives: In Search of the Sacred in Modern India - William Dalrymple

2. 2 States - Chetan Bhagat

3. The Idea of Justice - Amartya Sen (Unfortunately, I still haven't read it)

4. Jinnah - Jaswant Singh (Have read a lot about it already)

5. The Great Indian Love Story - Ira Trivedi (must confess, the author's really pretty)

And yes I have not, and will not, read Dan Brown's latest.

Phul Singh v. State of Haryana, A. 1980 SC 249

2009-10-05T11:48:00.000+05:30

Well, in this post, I won't really write anything.....I have just reproduced a judgment delivered by our Supreme Court a good 30 years back, and it does throw some light on the prevaling attitude of the times....Dear Reader, feel free to comment.

Phul Singh v. State of Haryana, A. 1980 SC 249

V.R. Krishna Iyer, J.

1. A philanderer of 22, appellant Phul Singh, overpowered by sex stress,in excess, hoisted himself into his cousin's house next door, and in broad day-light, overpowered the temptingly lonely prosecutrix of twenty four, Pushpa, raped her in hurried heat and made an urgent. exit having fulfilled his erotic sortie. The screaming victim complained to her mother working in the field; thereafter a first information, .prosecution and conviction ensued, a sentence of 4 years R.I. was imposed by the Sessions Court, and the High Court affirmed it in appeal. The broad facts bearing on the instant act of carnal assault look too probable for pettifogging legalistics about poor corroboration, consent and false implication to devalue their credibility. The culpability is beyond doubt and we uphold the conviction.

2. Ordinarily, rape is violation, with violence, of the private person of a woman-an outrage by all canons. In our conditions of escalating sex brutality a four-year term for rape is not excessive. But here, the offender is in his early twenties and signs of repentance are seen. The victim and her parents have forgiven the molester who is a first cousin, says counsel. An affidavit from the father-in-law of the woman has been filed and, if needed, counsel is ready to produce the victim's statement that she has forgiven the criminal. While it is possible that the accused may procure such condonation from an unwilling victim, the fact remains that the two families being close-cousins are ready to take a lenient view of the situation. Of course, this does not bind the Court in any manner. Therefore, taking an-overall view of the familial and the criminal factors involved, we reduce the imprisonment from 4 years to 2 years R.I.

3. We must, however, direct our attention in a different penological direction. For sentencing efficacy in cases of lust-loaded criminality cannot be simplistically assumed by award of long incarceration, for often that remedy aggravates the malady. Punitive therapeutics must be more enlightened than the blind strategy of prison severity where all that happens is sex starvation, brutalisation, criminal companionship, versatile vices through bio-environmental pollution, dehumanised cell drill under 'zoological' conditions and emergence, at the time of release, of an embittered enemy of society and its values with an indelible stigma as convict stamped on him-a potentially good person 'successfully' processed into a hardened delinquent, thanks to the penal illiteracy of the Prison System. The Court must restore the man.

4. A hyper-sexed homo sapiens cannot be habilitated by humiliating or harsh treatment, but that is precisely the perversion of unreformed Jail Justice which some criminologists have described as the crime of punishment. this Court has held, in Sunil Batra's case and later that, constitutionally viewed, punitive deprivation of personal freedom must be goal-oriented and humanely restorative, apart from being deterrent. The insulated years behind the insensitive bars must possess a hospital setting if correction is a social purpose, as Gandhiji often insisted. In-prison treatment must, therefore, be geared to psychic healing, release of stresses, restoration of self-respect and cultural normalisation, apart from training to adapt oneself to the life outside. The functional failure of our pachydermic prison projects, exacerbated by its tension and trauma on the one hand and the reverse ethos inside on the other, deserves judicial cognizance. The current efforts of Governments, Central arid State, to reform jail regimen, we hope, will give a better deal to the caged community. For these reasons, in this case, we deem it desirable to superadd to the sentence of imprisonment a few directives to ensure that the carceral period reforms the convict.

5. The appellant is not a 'habitual' and has no vicious antecedents except this fugitive, randy molestation which is bad enough in a society where women are often socially weak and sexually victimised. It may be marginally extenuatory to mention that modern Indian conditions are drifting into societal permissiveness on the carnal front promoting proneness to pornos in life, what with libidinous 'brahmacharis', womanising public men, lascivious dating and mating by unwed students, sex explosion in celluloid and book stalls and corrupt morals reaching a new 'high' in high places. The unconvicted deviants in society are demoralisingly large and the State has, as yet, no convincing national policy on female flesh and sex sanity. We hope, at this belated hour, the Central Government will defend Indian Womanhood by stamping out voluptuous meat markets by merciless criminal action: Isolated prosecutions and annual suppression rhetoric will stultify the law where the vice is widespread and the larger felons are often let loose.

6. This reflection apart, we must, as part of the sentencing package, design a curative course for this prisoner to rid him of his aphrodisiac overflow and restore him into safe citizenship.

7. He is a youth barely 22 with no criminal antecedents save this offence. He has a young wife and a farm to look after. Given correctional courses through meditational therapy and other measures, his erotic aberration may wither away. A man like the appellant has a reasonable prospect of shaping into a balanced person, given propitious social environs, curative and congenial work and techniques of internal stress release or of reformatory self expression.

8. In this background, We regard a four year term of rigorous imprisonment more hardening than habilitative, even though we deplore the sex violence the young appellant has inflicted on his cousin's wife snatching a tricky opportunity. Even so, the incriminating company of lifers and others for long may be counter-productive, and in this perspective, we blend deterrence with correction and reduce the sentence to rigorous imprisonment for two years. We wish to emphasise that the special circumstances of this case constrain us to relent a little on principle because the restorative approach to sentencing has been jettisoned by the courts below.

9. The task is not done by a negative reduction in the prison term. What is more important is a set of positive prescriptions which will ensure his turning a new leaf. One major method in securing this goal is to keep alive the family tie of the person in prison so that he may not deteriorate into a non-person. Within limits of the Prison Act and Rules thereunder, the State Government or the Inspector General of Prisons, will ensure that on parole, furlough or orders, the young appellant turns a new leaf of normal life.

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