[Commons-Law] Database and labour

Tue Jan 23 19:48:50 IST 2007

Dear All,
Well, outrageous as the doings of Mr.Mazumdar may be, I have some comments,
actually just one comment, about the paper itself, which I only managed to
glance through.  I guess, thus, this is addressed at Apar Gupta:

The impact of the EBC India case needs greater discussion.  It went against
the "skill and labour" standard and imported the Feist standard of "modicum
of creativity".  (The "skill and labour" standard is basically the "sweat of
the brow" theory, rewarding labour.  The word skill seems to be a useless
appendage.)  However, that judgment may very well be per incuriam.  The Diljeet
Titus case (while seemingly uses the "sweat of the brow" theory), at one
point (while quoting from a text, I forget which one) uses the phrase "skill
and judgment".  A Canadian Supreme Court case held (in 2003, if I'm not
mistaken) that "skill and judgment" is a standard halfway between
skill-and-labour and the modicum-of-creativity standard.  Perhaps the effect
of these two cases should be gone into in greater detail.

And Mr.Bagchi, the law in India as interpreted by our courts, seems to vest
intellectual property rights merely on the ground of labour expenditure.
And Locke's theory is still not completely out of fashion, even in academic
circles.  Thus it might not be "well-known", even though in principle I tend
to agree that common source ought to be a defence against copyright
infringement (and hence mere labour without an iota of creativity should not
be protected).  In the US, it is a defence (as clarified by Feist), and in
India, the position is a bit murky.  While the courts have clearly held
(even in the mid-90s, after Feist) that common source is not a defence, in
the EBC India case, the Delhi High Court expressly went with the Feist ruling,
and against the labour theory.

Regards,
Pranesh

On 1/22/07, commons-law-request at sarai.net <commons-law-request at sarai.net>
wrote:
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> Today's Topics:
>
>    1. Re: Fwd: On database law in India (jayna kothari)
>    2. Re: Protecting Databases- A draft open for comments
>       (Jeebesh Bagchi)
>
>
> ---------- Forwarded message ----------
> From: "jayna kothari" <jaynakothari at hotmail.com>
> To: apargupta at gmail.com, commons-law at sarai.net
> Date: Sun, 21 Jan 2007 21:30:02 +0530
> Subject: Re: [Commons-Law] Fwd: On database law in India
>
> Dear all,
>
> I have been reading these emails where Anirban Mazumdar has completely
> taken
> Apar's paper and represents it as his own. I even looked at the website
> where the exact paper in its entirety is published as Apar Gupta's. What's
> going on and how can Anirban Mazumdar do it with such impunity and even
> post
> it on commons law?? This is a new generation of IP and copyright lawyers
> (including the likes of Mr. Rodney Ryder) who do not believe in any
> copyright at all!! And what is the commons law community going to do about
> it?
>
> Jayna
>
>
>
>
> -------------------------------------
> Jayna Kothari
> Ashira Law
> Advocates & Solicitors
> 50/6 Palace Road,
> Bangalore-560052
> India
> Ph: ++91 80 22261090
>
>
>
>
>
> >From: "Apar Gupta" <apargupta at gmail.com>
> >To: commons-law at sarai.net
> >Subject: [Commons-Law] Fwd:  On database law in India
> >Date: Sat, 20 Jan 2007 19:03:34 +0530
> >
> >Dear All,
> >
> >Please find the paper allegedly written by Mr. Anirban on the following
> >link.
> >http://www.naavi.org/apar_gupta/<
> http://www.naavi.org/apar_gupta/database_protection_dec16.htm>
> >I am quite shocked by the fact that a student paper is plagiarised in
> >totality by the faculty of a law college.
> >
> >Regards
> >
> >Apar
> >
> >---------- Forwarded message ----------
> >From: Apar Gupta <apargupta at gmail.com>
> >Date: Dec 5, 2006 7:28 PM
> >Subject: Re: [Commons-Law] On database law in India
> >To: ANIRBAN MAZUMDAR < anirbanmazumdar at hotmail.de>
> >
> >Dear Sir,
> >
> >I am enclosing an unpublished article on the subject which may interest
> >you.
> >
> >Regards
> >
> >Apar Gupta
> >
> >On 12/5/06, ANIRBAN MAZUMDAR <anirbanmazumdar at hotmail.de> wrote:
> >>
> >>
> >>
> >>I am Prof. Anirban Mazumder from the National University of Juridical
> >>Sciences, Kolkota. I am in the process of completing a novel database
> law
> >>for India. There has been no initiative, before mine, to set up a
> database
> >>law. I would invite comments and suggestions on the proposed database
> law.
> >
> >>
> >>
> >>Thank you,
> >>
> >>ANIRBAN
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>ANIRBAN MAZUMDER
> >>LECTURER IN LAW
> >>NATIONAL UNIVERSITY OF JURIDICAL SCIENCES
> >>NUJS BHAVAN
> >>12 LB BLOCK
> >>SALT LAKE CITY
> >>CALCUTTA - 700098
> >>INDIA
> >>PH -00- 91-33-23350534 (O)
> >>                     23357379 (O)
> >>                     25216734 ( R)
> >>FAX -00- 91-33-23357422
> >>
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>
> ---------- Forwarded message ----------
> From: Jeebesh Bagchi <jeebesh at sarai.net>
> To: commons-law at sarai.net
> Date: Mon, 22 Jan 2007 01:45:44 +0530
> Subject: Re: [Commons-Law] Protecting Databases- A draft open for comments
> Is this not the basic reality of wage labour based commodity
> production!!!!
>
> Labour is not adequate effort to determine property rights is very
> well known.....so why feel so morally outraged by it.....!!
>
> On 20-Jan-07, at 6:34 PM, ANIRBAN MAZUMDER wrote:
>
> > It would be an atrocious doctrine to hold that dispatches, the
> > result of the
> > diligence and expenditure of one man, could with impunity be
> > pilfered and
> > published by another . . . . The mere fact that a certain class of
> > information is open to all that seek it, is no answer to a claim to
> > a right
> > of property in such information made by a person who, at his own
> > expense and
> > by his own labor, has collected it.
>
> Beneath it all, desire of oblivion runs:
> Despite the artful tensions of the calendar....
> (Philip Larkin)
>
>
>
>
>
>
>
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