Unlocking IP 2009 Presentation – Graham Greenleaf (Faculty of Law, UNSW) – The Magic Pudding: Australia’s Public Domain

The conference kicked off with a plenary by Professor Graham Greenleaf, who leads the research team at the of Centre for Cyberspace Law and Policy at UNSW.

I won’t summarise everything from his presentation here, but in short his main point was that “the Australian legal environment is relatively inhospitable to the public domain”.

Graham uses the term “public domain” in a wide sense, to encompass not only material that is completely free of copyright protection, but also material that is openly licensed and other similar categories of materials that are free for reuse.

Graham examined 10 areas in which we can improve Australia’s public domain:

1. Scope for broader exceptions

  • There are issues surrounding the 3 step test under the Berne Convention
  • Would a fair use exception give more balance?

Other issues that need copyright review:

  • Should contracts override exceptions to copyright?
  • When can we rely on implied licences – CAL v NSW shows that the law is too narrow
  • Does liability for authorisation extend too far?

2. Legal deposit’s role in innovation

  • Examining the significance of the role of online repositories

3. Finding missing rights holders

  • Orphan works
  • How to balance innovation and author’s interests
  • US copyright office recommends a statutory licence to use, after a diligent search and subject to contingent payments for use (if author is located) – this sounds sensible

4. Enabling open content licensing

5. Maximising the value of open source software to Australia

6. Moving towards open standards

7. Coexistence of collecting societies and public rights

  • Are collecting societies making it easy enough for their members to use open content licences when they wish to?
  • Are their practices too restrictive?
  • Need to examine whether the public ends up paying collecting societies for works that are in the public domain.

8. Reuseable government works

  • Currently no consistent policies on reuse of government works
  • Australia is becoming an international rarity in its restrictiveness
  • Should there be a seal for reusable government work (to communicate which government works are available for reuse)?

9. Public rights in publicly funded research

  • Do universities publishing such research outputs in repositories need some ‘safe harbour’ protections?
  • So if copyright infringement inadvertently occurs, steps can be made to remedy this without attracting liability first
  • Should this extend to part research outputs as well?
  • Should it extend to patent rights?

10. Indigenous culture’s relationship to the public domain

Where to from here?

  • An approach based on both principles and compromise
  • copyright today is equally about respect for authors rights and the public’s rights
  • public rights need separate articulation and representation
  • a peak organisation for the copyright public domain
  • a charter of public rights in copyright
  • A public rights focused law reform review of the Copyright Act
  • Positive strategies and public messages [for a peak body to adopt]
  • CC’s ‘some rights reserved’ is a good slogan
  • Albert the magic pudding as the mascot for Australia’s public domain – the “cut-n-come-again” pudding

Comments from Professor Brian Fitzgerald (QUT):

  • There is an evolution of copyright law from a control paradigm to an access paradigm
  • This is what occurred in the Google Book Search settlement – only the first iteration of what we may see in the future
  • Not free use but not compulsory licence use – somewhere in the middle, market driven, benefit sharing model
  • Public domain is structured to some extent to the laws existing outside of copyright e.g. competition law – Sony case – HC interested in the idea that there are other property rights out there that had to be reconciled. Social habits also structure this – e.g. file sharing and peer to peer – cases currently before the courts
  • We need to get government involved as an advocate in these issues