Tag Archives: unlocking IP

Unlocking IP 2009 presentation – Professor Anne Fitzgerald and Kylie Pappalardo (QUT) – Moving Towards Open Standards

In the afternoon, Professor Anne Fitzgerald and I presented on the legal (copyright and patent) issues involved in standards development and use, and how we might move towards a more open system of standards from a legal perspective.

Our slide set is available in powerpoint or in PDF.

I believe that UNSW will be publishing conference papers, including ours, in the near future. I will keep you updated on the publication status of our paper.

Unlocking IP 2009 Presentation – Matthew Landauer, OpenAustralia.org

Probably one of the most interesting presentations from the day came from Matthew Lanauer from OpenAustralia.org. OpenAustralia.org is based on the UK site by mySociety: theyworkforyou.com. OpenAustralia.org is a non-partisan website run by a group of volunteers which aims to make it easy for people to keep tabs on their representatives in Parliament.

In his presentation, Matthew described the problems he has faced gaining copyright permission from the Australian Government to host material such as Senate debates on the website. The Australian Hansard information is Copyright Commonwealth of Australia. For this material and other information, Matthew had lodged repeated requests with the government for permission to use the material, and had not received any response. Ultimately, in relation to one set of material he received an email from someone in government claiming that the material in question was free to be used as it was considered to be in the public domain (a position contrary to the copyright statement on the material). In relation to another set of material, Matthew considered he might have an implied licence, because although the government never officially responded to his request for permission with a yay or a nay, they sent him the material he asked for after he had informed them what he intended to do with it. However, it relation to a great deal of the material on Open Australia.org, Matthew is still not entirely clear of Open Australia’s legal position.

It is a great disappointment that someone like Matthew should have to be in this situation of legal uncertainty. We have a government that claims to be committed to openness and which has commissioned such pivotal reviews as the Review of the National Innovation System (which recommended more openness in government, particularly from a copyright perspective) and yet he still have repeated copyright requests going unanswered. OpenAustralia.org is a really important project from a democratic point of view, and I really hope that the government steps up and proves much more helpful in the future.

Unlocking IP 2009 presentation – Elliott Bledsoe (Creative Commons Australia and QUT) – Still No Good: APRA’s non-commercial licensing amendments and

  • APRA (Australasian Performing Right Association) takes full assignment of all past, present and future performing rights
  • not compatible with CC licensing (there is assignment back option or non exclusive licence for a specific purpose option, but these are not really helpful for CC)
  • so…

APRA has offered the non commercial licence back –

  • right to sub-licence communication right for non commercial purposes
  • no consideration or financial incentive
  • no direct or indirect financial gain on behalf of sub-licensee
  • sub-licensee is a not for profit entity
  • entity does not receive public or institutional funding

What is consideration?

  • Consideration is broad at law
  • should be read with “financial incentive” to limit?
  • But use or word “or” (“consideration or financial incentive”) suggests not
  • very wide

What is a not for profit entity?

  • Synonymous with non-profit
  • tax department – activities or entities where primary purpose not directed towards commercial advantage
  • entity? – under Corporations Act can be individual, partnership, trust etc.

Commercial advantage?

  • Who is making gain?
  • What about content exhibition – MySpace; lastfm.com etc.


  • Many things ruled out
  • members probably want to make use of online platforms
  • but probably not within scope of licence back
  • members may not understand this
  • Only grants communication online right
  • Rules out CC
  • because CC is a broad grant for other rights beyond communication
  • and CC applies to any use – online or offline

So CC still not available to APRA members

But at least APRA is trying. Hope for more progress in future.

Unlocking IP 2009 presentation – Louise Buckingham (Faculty of Law, UNSW) – Traditional Knowledge and the Public Domain: an overview

In a conference that was largely celebrating the notion of the public domain, Louise had a different perspective regarding how these notions affect traditional owners. I found her talk very interesting, because it highlighted the areas in which we must tread carefully. With our work with Creative Commons Australia, we are always careful to stress that CC is a choice only for those creators who want to share their work for free – it will not be appropriate for everyone. The same is true when we talk of the public domain – we should keep in mind that where indigenous culture is concerned, openness is not always the primary concern.

My notes:

  • The notion of the public domain is reified and exulted
  • In theory, it is important for democracy
  • Connotations of openness and freedom and undeniably appealing
  • But we when consider the intersection with tradition rights, it is problematic
  • The Australia academic environment is wary of examining how traditional forms of expression are affected detrimentally by this area
  • The appeal of the public domain has gained popularity on a global scale, but for indigenous people the issues are local
  • If we ignore there concerns, we run the risk of falling into imperialistm and colonialism
  • There is lots of talk about how traditional cultural expression does not fit within western copyright regimes
  • But not much talk about how notions of the public domain can act as another way to disempower indigenous people
  • Academics who have written in this area – Cathy Barry; Jane Anderson; others – highlight the cultural particularity of notions of the public domain
  • In 2000, UK and Australian governments agreed (after long negotiations) that traditional works should be repatriated to their traditional owners; but this was contrary to the practice of about 30 large museums and galleries at the time and they were able to prevent repatriation on the basis that this was public knowledge
  • Conclusions (tentative):

– Public domain is inherently global in its idealised form
– Protection for traditional knowledge must be local
– Currently dealt with at a global level, which only increases tension
– Public domain can be a domain of exclusivity and exclusion, as well as one of “openness” etc.
– It can legitimise the process of exclusion, “othering”, discrimination against indigenous people.

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

Unlocking IP 2009

Yesterday, on Thursday 16 April 2009, I attended the 2009 Unlocking IP Conference, hosted by the Cyberspace Law and Policy Centre at the University of New South Wales (UNSW). The conference is continuing today (Friday 17th), but I returned to Brisbane last night. I was hoping to live blog my notes yesterday, but unfortunately there was no internet access available. It continues to surprise me just how many conferences, in this day and age, do not provide wireless internet access to their conference delegates. In any event, I made some notes during the day, which I will be posting here. Some of these notes are brief, and they only cover a small portion of the presentations made yesterday. For most of the day the conference was divided into two streams so by necessity I missed at least half of the presentations. However, the ones I did catch were very interesting and I commend UNSW for bringing such a dynamic crowd together.

At the moment, the abstracts for all papers presented at the conference are available on the Unlocking IP website. I believe the team will also be making available slide presentations, full conference papers and podcasts sometime in the near future.

Unlocking IP 2009 Conference – National and global dimensions of the copyright public domain

On 16 April, I will be attending the Unlocking IP 2009 Conference in Sydney, titled, “National and global dimensions of the copyright public domain”. Together with Professor Anne Fitzgerald, I will be presenting a paper on the intersection of IPR and standards. The abstract of our paper can be read on the Unlocking IP conference papers webpage.

Details of the conference are:

Unlocking IP 2009 Conference –

National and global dimensions of the copyright public domain

16-17 April 2009 – UNSW Sydney

UNSW’s Cyberspace Law and Policy Centre invites you to register now for an international conference from the ‘Unlocking IP’ ARC research project, which investigates how Australia’s digital commons, both the public domain and public rights created by open content and open software licensing, can be expanded and protected. It focuses on ‘self help’ actions within the existing statutory context, in Australia’s distinct legal and cultural context, and on comprehensiveness – we offer preliminary results from the first survey of Australia’s digital commons, with data from National Library of Australia.

The conference includes reports and case studies from the front line, where new models for sharing and trading intellectual property meet the reality of business, government and educational demands, new technological opportunities and lessons learned from implementation of licences like Creative Commons and Free for Education. Book publishing under hybrid business models at Sydney University Press, online user generated content using Wikimedia, and international initiatives like the US ‘Reboot.gov’ and China’s IP abuse rule are featured, alongside detailed analysis of emerging legal and policy directions.

A highlight of the conference will be the launch of the 2009 Consumers International IP Watch List. Arising from the CI Access to Knowledge project, the list identifies countries whose IP policies and practices are harmful to consumers. It is used as a counterbalance to the United States’ “Special 301” Report, which is an annual report highlighting countries that supposedly do not provide strong enough protection for the interests of US intellectual property owners.

The venue is Law Faculty of UNSW, Kensington Sydney, close to beaches, parks and Sydney CBD.

For details of speakers and the program: http://cyberlawcentre.org/unlocking-ip/2009/program.htm

Register at: http://cyberlawcentre.org/unlocking-ip/2009/registration.htm